“My flesh and mind fail but GOD is the strength of my heart & my portion e.

Forcible entry
forever.” –Ps. 73:26 f. Unlawful detainer
 Court with jurisdiction over SCA
SPECIAL CIVIL ACTIONS 1. MTC- UD and FE
Preliminaries 2. SCA w/c are real actions (accion publiciana, reivindicatoria,
 Ordinary and special civil actions partition of real property)- depending on the assessed value of
- Although both types of actions are governed by the rules for the property
ordinary civil actions, there are certain rules that are applicable 3. C, P, & M- RTC; if the petition relates to the act/omission of a
only to specific special civil actions. That fact that an action is MTC, corporation, board, officer, or person.
subject to certain special rules, other than those applicable to - may also be filed w/ the CA/Sandiganbayan WON
ordinary civil actions, is what makes a civil action special. the same is in aid of the court’s appellate
 SCA in the ROC jurisdiction
1. Interpleader (Rule 62) - if it involves an act/omission of a quasi-judicial
2. Declaratory relief & similar remedies (Rule 63) agency- CA; unless otherwise provided by law/rule
3. Review of judgments & final orders or resolutions of the - in election cases involving an act/omission of a
COMELEC and COA MTC/RTC- petition shall be filed w/ COMELEC only
4. Certiorari, Prohibition, & Mandamus (Rule 65) in aid of its appellate jurisdiction
5. Quo warranto (Rule 66) - under Rule 56, petitions may also be filed w/ SC
6. Expropriation (Rule 67) including quo warranto petitions; QW- may also be
7. Foreclosure of REM (Rule 68)
filed w/ RTC/CA
8. Partition (Rule 69)
9. Forcible entry and Unlawful detainer (Rule 70) 4. Interpleader- RTC/MTC depending on the subject matter or the
10. Contempt (Rule 71) amount of claim
 How SCA are inititaed or commenced
1. By filing a petition: 5. Declaratory relief- RTC
a. Declaratory relief & other similar remedies Quieting of title- depends on the assessed value of the property
b. Review of adjudications of the COMELEC and COA
c. Certiorari, prohibition & mandamus 6. Expropriation- RTC
d. Quo warranto
7. Review of j, fo, r of COA & Comelec- may be brought only on
e. Contempt
certiorari under Rule 65 to the SC
2. By filing a complaint:
a. Interpleader 8. Indirect contempt- committed against a RTC or a court of higher
b. Expropriation rank may be filed w/ such court
c. Foreclosure of REM
d. Partition
 - where such contempt was committed against a lower court, the - May also result when 2 or more persons claim a right to collect
charge may be filed w/ the RTC of the place in w/c the lower court is from a DR who admits his liability but is uncertain as to who
sitting or may be instituted in such lower court. among several claimants is entitled to payment
Rem: Interpleader; deposits the amount owed to the court
RULE 62 Effect: the P asks from the court that he be dismissed from the
INTERPLEADER suit & be relieved of any liablity arising from the subject matter
of the interpleader
 Meaning of interpleader; purpose - When the lessee does not know the person entitled to the
- An interpleader is a SCA filed by a person against whom two payment of the rentals due bc of conflicting claims on the
conflicting claims are made upon the same subject matter and property
over which he claims no interest whatever in the subject - Insurer- when confronted by conflicting claims on the proceeds
matter, or if he has an interest which in whole or in part is not of an insurance policy
disputed by the claimants. This action is brought against the  Court with jurisdiction
conflicting claimants to compel them to interplead and litigate - Not more than 300k, 400k (MM)- MTC
their several claims among themselves. - Where the conflicting claims involve the right to receive a
 Requisites for an interpleader particular sum, the amount claimed determines jurisdiction
a. There must be 2 or more claimants with adverse or conflicting X- subject matter is the right to compel the D to litigate among
interests upon a subject matter themselves
b. The conflicting claims involve the same subject matter - If RP- based on assessed value (20k outside MM, 50k MM)
c. The conflicting claims are made against the same person - If the SM subject of the interpleader is incapable of pecuniary
(plaintiff) estimation (performance of obligation) – RTC
d. The plaintiff has no claim upon the subject matter of the  How commenced
adverse claims or if he has an interest at all, such interest is not - By filing a complaint
disputed by the claimants.  Interpleader vs. Intervention
- Where the subject matters are different, the claims are to be INTERPLEADER INTERVENTION
deemed separate & distinct; interpleader will not apply SCA, independent & original ancillary
Commenced by filing of a Commenced by a motion for leave
- The conflicting claims over the same subject matter will not
complaint to intervene filed in a pending
sustain an action in interpleader if such claims are merely claims case
against each other but not claims against the plaintiff in Filed by a person who has no Filed by a person who has legal
interpleader. interest in the SM or interest in any of the ff:
 When interpleader is proper; when filed undisputed (a) SM of the litigation
- Determination of who among the conflicting claimants has the (b) Success of either of the
legal right to receive the property or who among them is parties
(c) Interest against both
entitled to the performance of the obligation
(d) He may be adversely
 affected by the
disposition/distribution of
property in the custody of
the court or of an officer
thereof
D are brought into the action D are already parties to an
bc they are sued & impleaded existing original suit
as such in the complaint
 Payment of docket fees; lien
- The docket and other lawful fees paid by the party who filed a
complaint under this Rule, as well as the costs and litigation
expenses, shall constitute a lien or change upon the subject
matter of the action, unless the court shall order otherwise.
 Summons; order to interplead
1. Summons shall be served upon the conflicting claimants,
together with a copy of the complaint and order. (Sec. 3, Rule
62)
2. Upon the filing of the complaint, the court shall issue an order
requiring the conflicting claimants to interplead with one
another. If the interests of justice so require, the court may
direct in such order that the subject matter be paid or delivered
to the court (Sec. 2, Rule 62)
 Motion to dismiss
1. Within the time for filing an answer, each claimant may file a
motion to dismiss on the ground of (a) impropriety of the
interpleader action or (b) on other appropriate grounds
specified in Rule 16. (Sec. 4, Rule 62)
 Impropriety of the interpleader action
- Lack of any of the reqs; not equal to failure to state a COA since
the meaning of COA in OCA does not exactly apply to an
interpleader
 Effect of the filing of a MD on the period to answer
- The period to file the answer shall be tolled and if the motion is
denied, the movant may file his answer within the remaining
period, but which shall not be less than five (5) days in any
event, reckoned from notice of denial ( Sec. 4, Rule 62)
- 5 day perios reckoned from the notice of denial of MD- same
period (MD Rule 16 & motion for BP) are denied
 Answer
- Each claimant shall file his answer setting forth his claim within
fifteen (15) days from service of the summons upon him,
serving a copy thereof upon each of the other conflicting
claimants who may file their reply thereto as provided by these
Rules.
- Answer- claim of the answering claimant
 Default
- If any claimant fails to plead within the time herein fixed, the
court may, on motion, declare him in default and thereafter
render judgment barring him from any claim in respect to the
subject matter.
- On motion
- ‘may’- not mandatory (court)
- When the court declares him in default- judgment is one that
bars him from any claim in respect to the subject matter
 Reply
- The claimant served w/ the answer may file his reply
- Not mandatory
- Like OCA- new matters alleged in the answer are deemed
controverted
 Other pleadings
- The parties in an interpleader action may file counterclaims,
cross-claims, third-party complaints and responsive pleadings
thereto, as provided by these Rules.
 Pre-trial
- Rule 18 applies
 Determination; adjudication
- The court shall determine the respective rights of the claimants
& shall adjudicate the several claims:
 a. After the pleadings of the conflicting claimants have been
filed; and
b. The pre-trial has been conducted.
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
 Meaning
- Declaratory relief is an action by any person interested in a
deed, will, contract, or other written instrument, executive
order or resolution, to determine any question of construction
or validity arising from the instrument, executive order, or
regulation, or statute; and for a declaration of his rights &
duties thereunder. The only issue that may be raised in such a
petition is the question of construction or validity of provisions
in an instrument or statute. Corollary is the general rule that
such an action must be justified, as no other adequate relief or
remedy is available under the circumstances.
 Purpose of declaratory relief
To:
a. Determine any question of construction or validity arising from
the subject of the action; and
b. Seek for a declaration of the petitioner’s rights thereunder.
- In its practical application, actions to declare a law, a statute or
EO unconstitutional- DR
- DR is brought to secure an authoritative statement of the rights
& obligations of the parties under a contract or statute for their
guidance in the enforcement or compliance w/ the same
X- settle issues arising from its alleged breach
X- ask for affirmative reliefs like injunction, damages, etc.
- Considering the nature of a proceeding for declaratory
judgment, wherein relief may be sought only to declare rights &
not to determine or try issues, a DR proceeding is unavailable
where judgment would have to be made, only after a judicial
investigation of disputed issues.
 2 types of actions under Rule 63; similar remedies
1. DR
2. Similar remedies:
a. Action for the reformation of an instrument
b. Action for quieting of title to real property or remove clouds
therefrom
c. Action for consolidation of ownership
 When court may refuse a judicial declaration
1. The types of actions under Rule 63 are treated differently
DR- the court, motu proprio or upon motion, may refuse to
exercise the power to declare rights and to construe
instruments in any case where (a) a decision would not
terminate the uncertainty or controversy which gave rise to the
action, or in any case where (b) the declaration or construction
is not necessary and proper under the circumstances (Sec. 5,
Rule 63)
-discretion of the court
2. Similar remedies- court has no discretion to refuse to act &
render a judgment
 Requisites for declaratory relief
a. The subject matter of the controversy must be a deed, will,
contract, or other written instrument, statute, executive order
or regulation or ordinance.
b. The terms of said statute or document & the validity thereof are
doubtful & require judicial construction
c. There must have been no breach of the statute or document in
question
d. There must be an actual justiciable controversy or the “ripening
seeds” of one between persons whose interests are adverse
e. The issue must be ripe for judicial determination
f. Adequate relief is not available through other means or other
forms of action or proceeding
 Subject matter in a petition for declaratory relief;exclusive
a. Deed
b. Will
 c. Contract or other written instrument
d. Statute
e. Executive order or regulation
f. Ordinance or
g. Any other governmental regulation
 When a petition for DR is not proper; examples
X- ask the court to declare his filiation & consequently his hereditary
rights
X- to seek judicial declaration of citizenship to correct a previous
unilateral registration by P as an alien
X- for the purpose of seeking enlightenment as to the true import of
a judgment (Rem: clarificatory judgment)
X- to assail a judgment (proper rem: MR, MNT, appeal – if not yet
final; if final- petition for relief/action to annul j)
X- where the contract/statute is clear in its terms & there is no
doubt as to its meaning & validity
R: the petition presupposes that the terms of a document or of a
statute are of doubtful validity and thus require judicial
interpretation.
 Issue & relief
- The only issue that may be raised- question of
construction/validity of provisions in an instrument/statute
- The remedy sought is the declaration of the P’s rights/duties
 Who may file the petition
1. Deed, will, contract or other written instrument- by any person
interested
- Those who may sue under the contract should have an interest
therein like the parties, their assignees, and heirs as required by
substantive law.
2. Statute, Eo, regulation, ordinance, or any other governmental
regulation- commenced by one whose rights are affected by the
same
 Other parties
1. The other parties are all persons who have or claim any interest
which would be affected by the declaration
2. The rights of persons not made parties to the action do not
stand to be prejudiced by the declaration. Since their rights are
not to be prejudiced by their non-inclusion, the failure to
implead such persons does not affect the jurisdiction of the
court over the petition.
3. In any action involving the validity of a local government
ordinance, the corresponding prosecutor or attorney of the
local governmental unit involved shall be similarly notified and
entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified and
entitled to be heard. (Sec. 4, Rule 63)
4. In any action which involves the validity of a statute, executive
order or regulation, or any other governmental regulation, the
Solicitor General shall be notified by the party assailing the
same and shall be entitled to be heard upon such question.
(Sec. 3, Rule 63)
 Court with jurisdiction
- RTC; Subject matter of DR is incapable of pecuniary estimation
- SC- appellate
- It is procedurally inappropriate to question the validity of an EO
issued by the President thru a petition for certiorari. Petition for
DR is the proper recourse since the issuance of an EO is not a
judicial or quasi-judicial act.
 - EO issued by a mayor in connection w/ his executive
functions
- If quieting of title- depends upon the assessed value of the RP
- Reconveyance of title/ cancellation- assessed value; includes
friar lands
- However, where in an action styled as for quieting or removal of
a cloud on a title, the P actually seeks for a declaration of his
rights, the action is one for DR, w/c properly falls w/in the
jurisdiction of the RTC
- Action for reformation of instrumet- RTC; incapable of PE
- Action for consolidation of ownership- RTC; assessed value not
material; the action brought for consolidation of ownership is
 merely to obtain a judicial order to effect the registration of the
consolidated ownership in the Registry of Property, NOT to
acquire ownership or title over the property. Hence, it is not a
real action.
 Petition for declaratory relief treated as a petition for prohibition
- Treating a petition for DR as one for prohibition if the case has
far-reaching implications & raises questions that need to be
resolved for the public good; a petition for prohibition is a
proper remedy to prohibit or nullify acts of executive officials
that amount to usurpation/ legislative authority; imposition of
VAT has far-reaching implications
- When P files a petition for DR w/ SC, it may be dismissed
outright since it has no original jurisdiction over such
XPN: the Court may treat is as mandamus or prohibition
depending upon the allegations in the petition if it has far-
reaching implications
 Inapplicability of a third-party complaint
- The relief sought in a third-party complaint is contribution,
indemnity, subrogation, or other relief from the 3rd party
defendant in respect of the claim of the P against him. This
relief cannot be granted because, in a DR, the court is merely
interpreting the terms of the contract
 Applicability of a compulsory counterclaim
- A petition for DR may entertain a compulsory counterclaim as
long as it is based on or arising from the same transaction,
deed, or contract subject matter of the complaint.
 Granting affirmative relief
GR: not allowed
XPN: although the action is for a declaratory judgment but the
allegations in the complaints are sufficient to make out a case for
specific performance or recovery of property w/ claims for
damages, and the defendants did not raise an issue in the TC to
challenge the remedy/form of the action availed of, the court can
grant such affirmative relief as may be warranted by the evidence.
 No executory process as in ordinary civil actions
1. Since the objective of p for DR is merely an interpretation of a
deed, contract or for a definitive pronouncement of rights
under a particular law, rule, or order, there is nothing to
execute in the judgment of the court the way j in OCA are
executed. J in a DR is confined either to an interpretation of a
deed or declaration WON P has rights under the law.
2. The j in a petition for DR can be carried into effect w/o
requiring the parties to pay damages or perform any act as
when the P’s complaint is captioned as quieting of title &
damages, but all that the P prayed for is to uphold the validity of
its titles.
3. Jurisprudence does NOT absolutely close the doors to an
executory process in a p for DR
R: same rules governing OCA may & do apply to SCA if not
inconsistent with or if they may serve to supplement the
provisions of the peculiar rules governing SCA
 Filing before any breach or violation
1. If there is already a breach, the appropriate ordinary civil action
should be filed.
2. However, when the breach occurs NOT before the filing of the
petition for DR but after the action has been instituted & before
its final determination, it need not be dismissed bc it may be
converted into an ordinary action.
- If before the final termination of the case, a breach or violation
of an instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take
place, the action may thereupon be converted into an ordinary
action, and the parties shall be allowed to file such pleadings as
may be necessary or proper (Sec. 6, Rule 63)
- Although sec. 6 allows the conversion, the party desiring such
needs to argue the point & specify the ordinary action desired.
The same must also be raised in the TC & not for the first time
on appeal.
 Justiciable controversy; other requisites
 1. The concept of a COA under OCA does NOT strictly apply. It is bc
the action for DR presupposes that there has been no actual
breach of the instruments involved or of rights arising
thereunder. Nevertheless, a breach or violation should be
impending, imminent, or at least threatened.
2. The absence of a breach should not, however, be taken to mean
that the petition need not involve a justiciable controversy.
3. Certain reqs for an action for DR:
a. There is a justiciable controversy
b. The controversy is between persons whose interests are
adverse
c. The party seeking the relief has a legal interest in the
controversy
d. The issue invoked is ripe for judicial determination
- A mere apprehension of an administrative sanction does NOT
give rise to a justiciable controversy
SIMILAR REMEDIES
 Reformation of an instrument
1. An action for reformation is not one brought to reform a
contract but ‘to reform the instrument’ evidencing the contract.
Art. 1359 of the CC does not refer to reformation of contracts
but of instruments.
2. The instrument herein does not reflect the true agreement by
reason of mistake, fraud, inequitable conduct, or accident. This
action is brought so the true intention of the parties may be
expressed in the instrument
3. The defect is not found in the meeting of the minds (w/c is the
contract). The defect is found in the deed of sale w/c is the
instrument.
- When a mutual mistake of the parties causes the failure of the
instrument to disclose their real agreement, said instrument
may be reformed (Art. 1361, CC)
- An instrument may be reformed if it does not express the true
intention of the parties bc of lack of skill of the person drafting
the instrument (Art. 1364)
- If the parties agree upon the mortgage or pledge of property,
but the instrument states that the property is sold absolutely or
with a right of repurchase, reformation of the instrument is
proper. (Art. 1365)
4. Where the consent is procured by fraud, inequitable conduct or
accident- proper rem is annulmet of contract, NOT reformation
of the instrument
5. Reformation cannot be brought for the ff:
a. Simple donations inter vivos wherein no condition is
imposed;
b. Wills; or
c. When the real agreement is void.
 Consolidation of ownership
- Origin: law on sales; a contract of sale may be extinguished by
legal (by statute; co-owner; rural land) or conventional
redemption (pacto de retro; fixed by the parties; cannot exceed
10 yrs from the date of the contract; in the absence of an
express agreement- 4 yrs)
- Where redemption is not made w/in the period agreed upon, in
case the SM is real property, consolidation of ownership in the
vendee shall not be recorded in the Registry of Property w/o a
judicial order, after the vendor has been duly heard.
- The action brought to consolidate ownership is NOT for the
purpose of consolidating the ownership of the property in the
person of the vendee or buyer but for the registration of the
property. The lapse of the redemption period w/o the seller a
retro exercising his right of redemption consolidates
ownership/title upon the person of the vendee by operation of
law. Art. 1607 requires the filing of the petition to consolidate
ownership bc the law precludes the registration of the
consolidated title w/o a judicial order.
 Quieting of title; quasi in rem action
1. Quieting of title is brought to remove a cloud on title to real
property or any interest therein. The cloud is caused by any
instrument, record, claim, encumbrance or proceeding w/c
 appears to be valid or effective. However, in truth & in fact, the
same is invalid, ineffective, voidable, or unenforceable, and may
be prejudicial to the title to real property. Quieting of title may
also be brought as a preventive remedy to prevent a cloud from
being cast upon title to real property or any interest therein.
(Art. 476, CC) There may also be an action to quiet title or
remove a cloud therefrom when the contract, instrument, or
other obligation has been extinguished or terminated or barred
by extinctive prescription.
- The plaintiff need not be in possession of the real property
before he may bring the action as long as he can show that he
has a legal or equitable title to the property w/c is the subject
matter of the action.
2. The cloud on title consists of:
a. any instrument, record, claim, encumbrance or proceeding
b. w/c is apparently valid/effective
c. but is in truth & in fact invalid, ineffective, voidable, or
unenforceable,
d. may be prejudicial to the title sought to be quieted
3. An action to quiet title is a proceeding quasi in rem. In an action
quasi in rem, an indl is named a defendant and the purpose of
the proceeding is to subject his interests to the obligation/loan
burdening the property. Actions quasi in rem deal w/ the status,
ownership or liability of a particular property but w/c are
intended to operate on these questions only as between the
particular parties to the proceedings & not to ascertain or cut
off the rights or interests of all possible claimants. The judgment
therein is binding only upon the parties who joined the action.
 Requisites for quieting of title
1. An action for quieting of title- common law remedy grounded
on equity
2. Requisites:
a. The plaintiff or complainant has a legal or equitable title or
interest in the real property subject of the action
b. The deed, claim, encumbrance or proceeding claimed to be
casting cloud on his title must be shown to be, in fact,
invalid or inoperative despite its prima facie appearance of
validity or legal efficacy
- In order to maintain a suit for quieting of title where the
grantee of a land under a NHA program has passed away, the
plaintiffs must show that under the terms of the NHA program,
they are legitimate successors to or beneficiaries of the
deceased upon his death. Proof of heirship alone does NOT
suffice. Without such evidence, their legal or equitable interest
in the property could not be established.
RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDER OR RESOLUTIONS
OF THE COMMISSION ON ELECTIONS AND THE COMMISSION
ON AUDIT
 Preliminaries
1. Basis: Sec. 7, Art. IX-A (Constitutional Commissions)
“Unless otherwise provided by this Constitution or by law, any
decision, order, or ruling of each commission may be brought to
the SC on certiorari by the aggrieved party within 30 days from
receipt of a copy thereof.”
 - Rule 65
- The certiorari jurisdiction of the Court over orders, rulings, and
decisions of the Comelec should be confined to instances of
grave abuse of discretion amounting to patent and substantial
denial of due process.
 Applicability of Rule 64
- Governs the review of judgments, final orders (not interlocutory
orders) or resolutions of the COMELEC & COA.
 Remedy of the aggrieved party; application of Rule 65
1. A judgment or final order or resolution of the Commission on
Elections and the Commission on Audit may be brought by the
aggrieved party to the Supreme Court on certiorari under Rule
65 (Sec. 2, Rule 64)
 2. J or fo of the Con Com are not reviewable by appeal
R: certiorari, as a rule, is available only when there is no appeal,
nor any other plain, speedy, or adequate remedy in the ordinary
course of law (if appeal is available, certiorari is not the remedy)
 Raising jurisdictional grounds
1. The P must anchor the petition on jurisdictional grounds, i.e.,
that the Commission concerned acted w/o or in excess of
jurisdiction or with GAD amounting to lack or excess of
jurisdiction
X- questions of facts, law, or mixed q of facts & law (mere errors
of judgment; proper rem: appeal)
X- to raise the issue of the validity of a prepayment scheme in
assailing a COA resolution is to raise an issue that is inherently a
question of fact or an error of judgment w/c is not within the
ambit of a Rule 64 petition
2. Grave abuse of discretion exists when there is an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by
law or to act in contemplation of law as when the judgment
rendered is not based on law & evidence but on caprice, whim,
and despotism.
 Rule 64 does NOT apply to the Civil Service Commission
- Rule 43: mode of appeal from j or fo of the CSC; shall be taken
to the CA whether the appeal involves questions of fact, law,
mixed q of f & l w/in 15 days from notice of the award, j, fo, or
reso.
 Findings of fact; not reviewable
1. Findings of fact of the Commission supported by substantial
evidence shall be final and non-reviewable. (Sec.5, Rule 64)
R: in recognition of their expertise on the specific matters under
their jurisdiction
 When to file the petition; distinctions in the application of Rule 65
to other tribunals, officers, or persons
1. While Rule 64 refers to the same remedy of certiorari as the GR
in Rule 65, they cannot be equated, as they provide for different
reglementary periods. Rule 65 provides for a period of 60 days
from notice of judgment sought to be assailed in the SC, while
Sec. 3 of Rule 64 expressly provides for only 30 days.
2. The period of 30 days clearly refers to a petition directed
against a judgment or final order of the commission concerned.
It is opined that in case a petition for certiorari directed against
an interlocutory order of the commission is allowed, the period
in Rule 65 should apply.
3. Rule 65- petition shall be filed not later than 60 days from
notice of the j, o, or reso. In case a MR/MNT is filed & denied,
the petition may, nevertheless be filed not later than 60 days
from notice of the denial of the motion.; “fresh-period” applies
However, the fresh-period rule does NOT similarly apply to the
timeliness of petitions under Rule 64; if MR/MNT is allowed
under the procedural rules of the Commission concerned,
aggrieved party may file the petition w/in the remaining period,
w/c shall not be less than 5 days in any event reckoned form the
notice of denial.
 Motion for new trial/motion for reconsideration
1. Depends upon the procedural rules of the commission
concerned; if allowed, filing of either shall interrupt the period
for the filing of the petition for certiorari.
However, if the motion is pro forma, the period for filing the
petition is not interrupted.
 Payment of docket & lawful fees
- Upon the filing of the petition, the petitioner shall pay to the
clerk of court the docket and other lawful fees and deposit the
amount of P500.00 for costs. (Sec. 4, Rule 64)
 Filing of petition does NOT stay execution
- While the filing of a motion for new trial or reconsideration of
said judgment or final order or resolution, if allowed under the
procedural rules of the Commission concerned, shall interrupt
the period for the filing of the petition, the filing of the petition
itself shall not stay the execution of the judgment or final order
or resolution sought to be reviewed, unless the Supreme Court
 shall direct otherwise upon such terms as it may deem just.
(Sec. 8, Rule 64)
- In order to stay the execution of the judgment, Sec. 7 of Rule 65
may be availed of suppletorily. Under such, in order to interrupt
the course of the principal case, the petitioner should obtain a
TRO or a writ of PI.
 Form of the petition
- The petition shall be verified and filed in eighteen (18) legible
copies.
 Parties
- The petition shall name the aggrieved party as petitioner and
shall join as respondents the Commission concerned and the
person or persons interested in sustaining the judgment, final
order or resolution a quo.
 Contents of the petition
a. The petition shall state the facts with certainty & present clearly
the issues involved;
b. The petition shall set forth the grounds and brief arguments
relied upon for review;
c. The petition shall be accompanied by a clearly legible duplicate
original or certified true copy of the judgment, final order or
resolution subject thereof, together with certified true copies of
such material portions of the record as are referred to therein
and other documents relevant and pertinent thereto. The
requisite number of copies of the petition shall contain plain
copies of all documents attached to the original copy of said
petition.
d. The petition shall state the specific material dates showing that
it was filed within the period fixed by the Rules
e. The petition shall further be accompanied by proof of service of
a copy thereof on the Commission concerned and on the
adverse party, and of the timely payment of docket and other
lawful fees.
f. The petition shall contain a sworn certification against forum
shopping
g. The petition shall pray for judgment annulling or modifying the
questioned judgment, final order or resolution.
 Verification; material data (date) rule; certification against forum
shopping
a. The petition must be verified
b. The petition shall state the specific material dates showing that
it was filed within the period fixed by the Rules (material data
(date) rule)
c. That the petition shall contain a sworn certification against
forum shopping
 Effect of failure to comply with the provision on form and contents
of the petition
- The failure of petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the
petition.
 Order to comment; outright dismissal
1. The Court has 2 options upon receipt of the petition- to deny
the petition outright or to order the filing of a comment
2. The Court may dismiss the petition outright if (a) the petition is
not sufficient in form and in substance; (b) it was filed
manifestly for delay; or (c) the questions raised are too
unsubstantial to warrant further proceedings
3. If the Supreme Court finds the petition sufficient in form and
substance, it shall order the respondents to file their comments
on the petition within ten (10) days from notice thereof.
 Form of the comment
- The comments of the respondents shall be filed in eighteen (18)
legible copies. The original shall be accompanied by certified
true copies of such material portions of the record as are
referred to therein together with other supporting papers. The
requisite number of copies of the comments shall contain plain
copies of all documents attached to the original and a copy
thereof shall be served on the petitioner.
 No other pleading to be filed
 - No other pleading may be filed by any party unless required or 1. Certiorari, as a SCA, is an original action invoking the original
allowed by the Court. jurisdiction of a court to annul or modify the proceedings of a
 Oral arguments; memoranda; submission for decision tribunal, board, or officer exercising judicial/quasi-judicial
- When the comments on the petition & the required pleadings functions. It is an original & independent action that is not part
are filed or when the period to file the same has expired, the of the trial or the proceedings on the complaint filed before the
case shall be deemed submitted for decision except if the Court trial court.
decides to set the case for oral argument or requires the parties 2. Since certiorari as a SCA is an original action, the decision
to submit memoranda. rendered on such action is appealable, & not reviewable by
another petition for certiorari. When a p for c is filed &
CERTIORARI, PROHIBITION, AND MANDAMUS adjudicated upon, the decision of the court on the petition is to
A. Certiorari be treated as a judgment and, hence, like any other judgment in
 Purpose and function of a petition for certiorari an OCA, is appealable. It cannot be assailed by another petition
1. Also called a “prerogative” writ bc it is never demandable as a for certiorari.
matter of right; the purpose of the petition is to secure a judgment  Certiorari distinguished from appeal in general
annulling or modifying the proceedings of such tribunal, board or CERTIORARI APPEAL
officer, and granting such incidental reliefs as law and justice may Remedy designed for the Error of judgment, law, or fact
require. correction of errors of
2. The sole office of the writ of certiorari is the correction of errors of jurisdiction
Original & independent action; Merely a continuation of the
jurisdiction
not part of the trial that had original suit
 Certiorari under Rule 65; not a mode of appeal resulted in the rendition of the
1. It is an original action; not a mode of appeal even if filed w/ a judgment or order complained
higher court/tribunal of
2. The remedies of appeal & certiorari are considered as mutually The higher court uses its original The higher court exercises its
exclusive & not alternative/successive. Certiorari cannot be a jurisdiction in accordance with appellate jurisdiction & power of
substitute for a lost appeal; certiorari is proper only if there is its power of control & review
supervision over the
no appeal or any plain, speedy & adequate remedy in the
proceedings of lower courts
ordinary course of law Parties include the lower court Parties are the original parties to
3. Where an appeal is available, certiorari will not prosper, even if or quasi-judicial agency issuing the action
the ground invoked is grave abuse of discretion; GAD, after all, the assailed order
is not the only element of certiorari. There is another element Should be filed not later than 60 Ordinary appeals- w/in 15 days
such as the unavailability of appeal or any other plain, speedy, days from the notice of Record on appeal- w/in 30 days
adequate remedy in the ordinary course of law. judgment, order, or resolution ; Appeal by certiorari- w/in 15
if MR/MNT was timely days
- Petitioners’ remedy from the adverse decision of CA lies in Rule
filed,period counted from the
45 (PRC) denial of the motion
 Certiorari is an original & independent action
 May be directed against an Directed to judgments & final Seeks to review final judgments Usually directed against an
interlocutory orderof the lower orders or to those that the ROC or orders interlocutory order or matters
court declares as appealable where no appeal may be taken
Generally requires a MR prior to MR not required before from; purpose is to annul the
the filing of the petition in order appealing a judgment or final proceedings of a lower tribunal
to afford the tribunal an order & prevent an unlawful &
opportunity to correct the oppressive exercise of legal
alleged errors; this motion is a authority
plain & adequate remedy Raises only questions of law Raises questions of jurisdiction
expressly available under the Filed w/in 15 days from notice of Filed not later than 60 days from
law judgment or final order notice of j, o, reso
appealed from
 Certiorari not a substitute for a lost appeal Does not require prior MR Requires prior MR as a GR
- The remedy to obtain reversal or modification of the judgment Stays the judgment appealed Does not stay the judgment or
on the merits is appeal. This holds true even if the error from unless a rule provides for order subject of the petition
the contrary unless enjoined or restrained
ascribed to the court rendering the judgment is its lack of
The parties are the original The tribunal, board, or officer
jurisdiction over the SM, or the exercise of power in excess parties w/ the appealing party exercising judicial or quasi-
thereof, or GAD in the findings of fact or of law set out in the as the petitioner & the adverse judicial functions is impleaded as
decision. The existence & availability of the right of appeal party as respondent respondent
prohibits the resort to certiorari bc one of the reqs for the latter Filed w/ the RTC, CA, SC, SB Filed only w/ the SC
remedy is that there should be no appeal.
 When certiorari is available despite the loss of appeal  Essential requisites for a petition for certiorari
- When appeal is lost w/o the appellant’s negligence a. The petition is directed against a tribunal, board, or officer
Other XPNs: exercising judicial or quasi-judicial functions
a. When the public welfare & advancement of public policy b. Such tribunal, board, or officer has acted without or in excess of
dictate jurisdiction or with GAD amounting to lack or excess of
b. When the broader interests of justice so require jurisdiction
c. When the writs issued are null & void c. There is neither appeal nor any plain, speedy & adequate
d. When the questioned order amounts to an oppressive remedy in the ordinary course of law for the purpose of
exercise of judicial authority annulling or modifying the proceeding. There must be
 Specific distinctions between certiorari (45 vs. 65) capricious, arbitrary, and whimsical exercise of power for it to
RULE 45 RULE 65 prosper
Mode of appeal SCA; independent & original  First element; respondent must exercise judicial or quasi-judicial
action functions
Continuation of the appellate Not a part of the appellate - Petitions for certiorari & prohibiton are availed of to question
process over the original case process but an original action judicial, quasi-judicial & mandatory acts
 -The T, B, or O exercising judicial or quasi-judicial function must
be clothed with power & authority to pass judgment or render a
decision on the controversy construing & applying the laws to
that end
X- if merely investigative & recommendatory; certiorari wil not
lie
X- subordinate legislation; quasi-legislative power
Samples:
Constitutionality of EO 7 issued by the Pres: proper rem:
petition for declaratory relief
X- assail a show cause order issued by the CHR chairman;
exercise of fact-finding investigation
X- to set aside an EO issued by a city mayor in the exercise of his
executive functions
X- against a city council that enacts an ordinance for the
payment of garbage fees
- It is the nature of the act to be performed, rather than of the
office, board, or body w/c performs it, that determines WON a
particular act is a discharge of judicial/quasi-judicial functions;
the assailed EO 10 was issued upon the respondent mayor’s
finding that Boracay West Cove’s construction, expansion, and
operation of its hotel in Malay, Aklan is illegal. Such a finding of
illegality required the mayor’s exercise of quasi-judicial
functions against w/c the special writ of certiorari may lie
 Expanded scope of certiorari
- Court pronouncements have extended the reach of the petition
to functions/acts that are neither judicial nor quasi-judicial; they
likewise categorically broadened the purpose of a petition for
certiorari to include raising constitutional issues and reviewing
and/or nullifying the acts of legislative & executive officials
- Basis: 2nd paragraph of Sec. 1, Art. VIII (Consti)- to determine
WON there has been a GAD amounting to lack of jurisdiction on
the part of any branch or instrumentality of the Government
(applied in the case assailing the constitutionality of DAP &
other issuances of DBM, acts of JBC, sale of PSALM of a power
plant)
 Second element; the R has acted without jurisdiction, or in excess of
its jurisdiction, or with grave abuse of discretion amounting to lack
of jurisdiction
- Any perceived error in the the court’s interpretation of the law
& its assessment of evidence is correctible by appeal, not
certiorari, as the same would only be considered an error of
judgment & not of jurisdiction
- Acting without jurisdiction; in excess of jurisdiction; grave abuse
of discretion
a. Without jurisdiction denotes that the T, B, or O acted w/
absolute lack of authority
b. There is excess of jurisdiction when the public respondent
exceeds its power or acts without any statutory authority
c. Grave abuse of discretion connotes such capricious &
whimsical exercise of judgment as to be equivalent to
lack/excess of jurisdiction; power is exercised in an arbitrary
or despotic manner by reason of passion, prejudice, or
personal hostility; and such exercise is so patent or gross as
to amount to an evasion of a positive duty or virtual refusal
either to perform the duty enjoined or act at all in
contemplation of law
- Petitioner- burden of proof w/ regard to GAD
X- mere denial of an application for an ex parte order for the
seizure of evidence; P failed to point out specific instances how
the R court supposedly exercised its power in a despotic,
capricious, or whimsical manner
- A judge gravely abuses his discretion when he extends by 20
days the 72-hour TRO he initially issued bc in no case shall the
total period of effectivity of the TRO exceed 20 days including
the 72 hours originally provided
- There is GAD where the TC fails to determine a factual
controversy before issuing a writ of demolition.
 - There is GAD if a judge hears a MD on the same day it was filed
bc the other party needs time to oppose such
- GAD- if court orders the immediate execution of a final order
w/o awaiting the expiration of the period to appeal & w/o even
a motion having been filed for execution pending appeal
- LA committed GAD by ordering the motion for execution of the
P abandoned & ordering the payment of separation pay even if
he did not abandon his claim for reinstatement
- Rendering a decision in favor of complainants against the
alleged employer w/o first determining the existence of an
employer-employee relationship & the failure to express the
factual & legal bases of a decision- GAD
- When the court allows an uninterested person to intervene in a
case- GAD
- There is no GAD if the TC, in the interest of justice, required a
full-blown hearing to determine factual issues in a land
registration case even if the P did not comply w/ some
procedural rules
 Third element: absence of appeal or any plain, speedy, & adequate
remedy
- It is the inadequacy & not the mere absence of all other legal
remedies & the danger of failure of justice without the writ,
that must usually determine the propriety of
certiorari/prohibition. A remedy is plain, speedy, & adequate if
it will promptly relieve the petitioner from the injurious effects
of the j, o, or r of the lower court or agency.
 When certiorari is allowed despite availability of appeal
a. When it can be shown that appeal would be inadequate, slow,
insufficient & will not promptly relieve a party from the
injurious effects of the order complained of
 Necessity for a MR
GR: the filing of a MR is a condition sine qua non to the filing of a
petition for certiorari to allow the court an opportunity to correct its
imputed errors
- Another reason: MR may still be considered as a plain, speedy,
& adequate remedy in the ordinary course of law
- Failure to file MR: warrants outright dismissal of certiorari
XPN: compelling reasons
 Exceptions to the requirement of a MR
- Also applies to petition for prohibition
a. The order is a patent nullity, as where the court a quo has no
jurisdiction;
b. The questions raised in the certiorai proceeding have been duly
raised & passed upon by the lower court, or are the same as
those raised & passed upon in the lower court
c. There is an urgent necessity for the resolution of the question &
any further delay would prejudice the interests of the govt or of
the petitioner
d. The subject matter of the action is perishable
e. Under the circumstances, a MR would be useless
f. P was deprived of due process & there is an extreme urgency
for relief
g. In a criminal case, relief from order of arrest is urgent & the
granting of such relief by the trial court is improbable
h. The proceedings in the lower court are a nullity for lack of due
process
i. The proceedings were done ex parte or in which the petitioner
had opportunity to object
j. Where the issue raised is one purely of law
k. Where public interest is involved
 - where the petition is filed questioning the authority of
the CA to enjoin the implementation of a preventive
suspension order issued by the Office of the
Ombudsman (transcendental importance)
 Filing of the petition for certiorari
- a person aggrieved thereby may file a verified petition in the
proper court, (a) alleging the facts with certainty and (b) praying
that judgment be rendered annulling or modifying the
 proceedings of such tribunal, board or officer, and (c) granting
such incidental reliefs as law and justice may require.
- The petition shall contain the full names & addresses of all the
petitioners & respondents, a concise statement of the matters
involved, the factual background of the case, & the grounds
relied upon for the relief prayed for.
- Aggrieved parties- include the State & private OP (in criminal
case, OP may file it in his name, not in the name of the Ppl)
 Other requirements for filing the petition
1. The petition shall be accompanied by (a) a certified true copy of
the judgment, order or resolution subject thereof, (b) copies of
all pleadings and documents relevant and pertinent thereto,
and (c) a sworn certification of non-forum shopping.
X- mere photocopies of j, o (outright dismissal justified;
insufficient in form)
R: a petition is procedurally flawed if Sec. 1 of Rule 65 is not
complied with bc these are documents important for the court’s
appraisal, evaluation, & judicious disposition of the case.
 When to file petition; extension generally prohibited
- Petitions for certiorai must be filed strictly w/in 60 days from
notice of the judgment, order, or resolution, or from notice of
the order denying the MR or NT.
- No extension of time to file the petition shall be granted except
for compelling reason and in no case exceeding fifteen (15)
days. (4a) (Bar Matter No. 803, 21 July 1998; A.M. No. 00-2-03-
SC)
P: to prevent the use/abuse of the petition for certiorari to
delay a case or even defeat the ends of justice
XPNs: in order to serve substantial justice & safeguard strong
public interest:
1. Most persuasive & weighty reasons
2. To relieve a litigant from an injustice not commensurate w/
his failure to comply w/ the prescribed procedure
3. Good faith of the defaulting party by immediately paying
within a reasonable time from the time of the default
4. The existence of special or compelling circumstances
5. The merits of the case
6. A cause not entirely attributable to the fault or negligence
of the party favored by the suspension of the rules
7. A lack of any showing that the review sought is merely
frivolous & dilatory
8. The other party will not be unjustly prejudiced thereby;
9. FAME w/o appellant’s fault
10. Peculiar legal & equitable circumstances attendant to each
case
11. In the name of substantial justice & fair play
12. Importance of the issues involved
13. Exercise of sound discretion by the judge guided by all the
attendant circumstances
 Court where petition is filed
1. If the petition relates to the acts or omissions of a municipal
trial court or of a corporation, board, officer or person, it shall
be filed w/ the Regional Trial Court exercising jurisdiction over
the territorial area as defined by the Supreme Court.
2. If it involves the acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these Rules, the petition
shall be filed in and cognizable only by the Court of Appeals.
3. Sandiganbayan- under the Rules, W/N in aid of its appellate
jurisdiction
Substantive law- only in aid of its appellate jurisdiction
4. In election cases involving an act or omission of a MTC/RTC, the
petition shll be filed exclusively with the COMELEC, in aid of its
appellate jurisdiction
 Meaning of “in aid of its appellate jurisdiction”
- A court may issue a writ of certiorari in aid of its appellate
jurisdiction if said court has jurisdiction to review, by appeal or
writ of error, the FO or d of the lower court. Accordingly, since it
is the COMELEC w/c has jurisdiction to take cognizance of an
appeal from the decision of the RTC in election contests
involving elective municipal officials, then it is also the
 COMELEC w/c has jurisdiction to issue a writ of certiorari in aid
of its appellate jurisdiction
 Observance of the ‘hierarchy of courts’ principle
 Parties to the petition
1. Person aggrieved- party in the proceedings before the LC
2. When the petition filed relates to the acts or omissions of a
judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person, the petitioner shall join, as private respondent
or respondents with such public respondent or respondents, the
person or persons interested in sustaining the proceedings in
the court (Sec. 5, Rule 65)
 Duty of private respondent
- The private respondent should appear & defend not only in his
own behalf but also in behalf of the public respondent affected
by the proceedings. If costs are awarded in favor of the
petitioner, such costs shall be against the private respondent
only & NOT against the public respondent.
 Public respondent; appearance not required; exception
- Unless otherwise specifically directed by the court where the
petition is pending, the public respondents shall not appear in
or file an answer or comment to the petition or any pleading
therein. If the case is elevated to a higher court by either party,
the public respondents shall be included therein as nominal
parties. However, unless otherwise specifically directed by the
court, they shall not appear or participate in the proceedings
therein.
 Filing of petition does not stay proceedings; necessity for a writ of
injunction
- The petition shall not interrupt the course of the principal case
unless a temporary restraining order or a writ of preliminary
injunction has been issued against the public respondent from
further proceeding in the case (Sec. 7, Rule 65)
R: a petition for certiorari is an original action & not a
continuation of the proceedings in the lower court; petition is
not concerned w/ the merits of the case below
- The mere filing of a petition for certiorari w/ a higher court
before the defendant files & serves his answer to the complaint,
does NOT stop the running of the period within w/c to file an
answer to the complaint filed w/ the LC.
 Judicial courtesy is NOT the prevailing rule; exception
- Under the new rule, the public respondent has the duty to
proceed with the principal case within 10 days from the filing of
the petition for certiorari with a higher court or tribunal, absent
a TRO or writ of PI, or upon its expiration. Failure of the public
respondent to proceed w/ the principal case may be a ground
for an administrative charge.
XPN: judicial courtesy may still apply if there is a strong
probability that the issues before the higher court would be
rendered moot as a result of the continuation of the
proceedings in the LC.
 Duty of the court w/c issued the PI
- The TC, CA, SB, CTA that issued the writ of PI against the lower
court, tribunal, board, officer, or quasi-judicial agency shall
decide the main case or petition within 6 months from the
issuance of the writ. (A.M. No. 07-7-12-SC)
 Order to Comment
X-summons
- The court shall issue an order requiring the respondent to
comment on the petition w/in 10 days from receipt of copy of
the petition; the order to comment shall be served together
with a copy of the petition & the annexes
- Shall be issued only if the p is sufficient in form & substance;
otherwise, outright dismissal
- Comment, NOT a MD
- In petitions for certiorari before the Supreme Court and the
Court of Appeals, the provisions of section 2, Rule 56, shall be
observed. Before giving due course thereto, the court may
require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may
 require the filing of a reply and such other responsive or other - Annulment/modification of the j, o, reso, or proceeding subject
pleadings as it may deem necessary and proper (Sec. 6, Rule 65) of the petition
 Proceedings after comment; judgment - May also include such other incidental reliefs as law & justice
- After the comment or other pleadings required by the court are may require
filed, or the time for the filing thereof has expired, the court - The court may also award damages; an execution may issue for
may (a) hear the case or (b) require the parties to submit any damages or costs awarded in accordance with section 1 of
memoranda. Rule 39.
- If after such hearing or submission of memoranda or the  Review of judgment in a certiorari petition
expiration of the period for the filing thereof the court finds - Appeal; since certiorari is an original action
that the allegations of the petition are true, it shall render - CA decision  SC- Rule 45
judgment for the relief prayed for or to which the petitioner is - RTC CA (notice of appeal; not PR under Rule 42; RTC decision
entitled (Sec. 8, Rule 65) in a p for c is made in the exercise of its original jurisdiction)
- Court need not conduct hearing if such is not necessary;  Liberal construction; when a Rule 45 petition is considered as a Rule
memoranda- sufficient 65 petition & vice-versa
 Grounds for dismissal of the petition; unmeritorious petitions - This happens in cases where the subject of the recourse is one
a. The petition is found to be patently w/o merit; of jurisdiction, or the act complained of is perpetrated by a
b. The p is prosecuted manifestly for delay;or court w/ GAD
c. The questions raised in the petition are too unsubstantial to - Where p dominated as Rule 45 p neither involves issue on j nor
require consideration a GAD, it should be dismissed outright
- In the dismissal of unmeritorious petitions, the court may award - Rule 65 45 allowed if:
in favor of the R treble costs solidarily against the P and counsel a. If the p for c was filed w/in the reglementary period w/in
plus subjecting the counsel to administrative sanctions. The SC w/c to file a PRC
may also impose, motu proprio, based on res ipsa loquitur, b. When errors of judgment are averred
other disciplinary sanctions/measures on erring lawyers for c. When there is sufficient reason to justify the relaxation of
patently dilatory & unmeritorious petitions for certiorari the rules as when there is significant issue of jurisdiction
 Service of copy of judgment to public respondent  Distinctions between certiorari under Rule 64 and under 65
- A certified copy of the judgment rendered in the certiorari Rule 64 Rule 65
proceedings shall be served upon the court, quasi-judicial Directed only against the j, fo, r Directed against other
agency, tribunal, corporation, board, officer or person of the COMELEC & COA entities/offices w/c refer to any
concerned in such manner as the court may direct (Sec. 9, Rule tribunal, board, or officer
exercising judicial/quasi-judicial
65)
functions
 Contempt for disobedience Filed w/in 30 days from notice Filed w/in 60 days from notice of
- disobedience to the j/o shall be punished as contempt of the j, fo, r the j, fo, or r sought to be
 Relief reviewed
Filing of MR interrupts the If MR/MNT denied- fresh period
 period for filing of a petition for of 60 days
certiorari
If denied- remaining period; but
not less than 5 days from notice
of denial
 Examples of situations where certiorari is a remedy
1. An order denying a petition for relief
2. Order dismissing an action w/o prejudice (ex. order dismissing a
complaint for failure to comply w/ the rules on certification
against forum shopping)
If dismissal w/ prejudice- appealable
3. A denial of a MD for lack of jurisdiction over the SM & the denial
of a MR of the order of denial (interlocutory orders)
4. A resolution of the Justice Secretary affirming, modifying, or
reversing the resolution of the IP (Rule 65 w/ CA)
- A j/fo of the CA on the petition for certiorari against the
Secretary of Justice SC- PRC (Rule 45)
5. To nullify the preventive suspension order issued by the
Ombudsman (R: order of suspension is an interlocutory order)
6. Adverse resolutions of the Ombudsman in PI of criminal cases
SC (Rule 65)
X- Rule 45
7. NLRC decision MR if deniedRule 65
GAD (NLRC)- when its findings & conclusions are not supported
by substantial evidence
8. J, fo, r of COMELEC, COA
9. Interlocutory order of a court (only if tainted w/ GAD)
 Some proceedings where certiorari is NOT available
1. If there is appeal, or a plain, speedy, & adequate remedy in the
ordinary course of law; if appeal is available, such must be taken
even if the ground is GAD
2. If a complaint is dismissed on the grounds of (a) res judicata,
(b)prescription, (c) extinguishment of the obligation, or (d)
unenforceability under the SOF
- Appealable
3. Petitions for certiorari, prohibition, & mandamus are NOT
available against an interlocutory order in:
a. Petition for a writ of amparo
b. Petition for a writ of habeas data
c. Small claims cases
d. Cases governed by the Rules on Summary Procedure;
includes FE & UD cases
XPN: in one case where the TC gravely abused its discretion
by indefinitely suspending the proceedings in ejectment
cases
4. Where the purpose of the petition for c is to question the merits
of an arbitral award
5. D & FO of Sandiganbayan proper rem: Rule 45 (SC)
6. Decisions of the CA Rule 45
7. Decisions of the CTA en banc Rule 45
8. Court order denying a motion for the issuance of a writ of
possession; final order nature appeal
B. Prohibition (Rule 65)
 Purpose & function of the remedy
1. Prohibition is an extraordinary writ commanding a tribunal,
corporation, board, officer or person, whether exercising
functions that are judicial, quasi-judicial or ministerial, to desist
from further proceedings when such are conducted without or
in excess of its jurisdiction, or with grave abuse of its discretion,
there being no appeal or any other plain, speedy, & adequate
remedy in the ordinary course of law (Sec. 2, Rule 65)
- 2 SCAs for determining & correcting GAD amounting to lack or
excess of jurisdiction- certiorari & prohibition
2. Purpose: to secure an order or judgment to command the
respondent tribunal, board, corporation, or officer to desist
from further proceedings in the action.
 3. Function: to prevent the unlawful & oppressive exercise of legal - Before resorting to prohibition, it must be established that
authority & to provide for a fair & orderly administration of there is no appeal or any other plain, speedy, and adequate
justice remedy in the ordinary course of law
4. It is a process by w/c a superior court prevents inferior courts,  Premature resort to prohibition
tribunals, officers, or persons from usurping or exercising a X- against a mere resolution expressing the desire of a Sangguniang
jurisdiction with which they have not been vested by law Panglungsod to expropriate property; since there is no complaint
5. Certiorari is a corrective remedy while prohibition is a for expropriation yet
preventive remedy  Prohibition distinguished from certiorari
6. Expanded functions of petitions for certiorari & prohibition (Sec. PROHIBITION CERTIORARI
1, Art. VIII Consti): appropriate remedies to raise constitutional Directed against a R exercising Seeks to annul acts of a R
issues & to review and/or prohibit/nullify the acts of the judicial, quasi-judicial, or performing judicial or quasi-
legislative & executive depts ministerial functions judicial functions
Directed against the tribunal Directed against the action of
7. Treating a petition for DR as prohibition- if the case has far-
itself commanding it to desist the court w/c is sought to be
reaching implications & raises questions that need to be from further proceeding with annulled
resolved for the public good the case
 Requisites for a writ of prohibition Purpose is to command the R to Purpose is to annul/modify the
a. The impugned act must be that of a tribunal, corporation, desist from further proceedings judgment, order, resolution or
board, or person exercising judicial, quasi-judicial, or ministerial proceedings of the public
functions respondent
b. The t, c, b, or p must have acted w/o or in excess of jurisdiction
or w/ grave abuse of discretion amounting to lack of jurisdiction Examples:
c. There is no appeal or any other plain, speedy, & adequate
remedy in the ordinary course of law 1. MD (improper venue) denied by the courtMR denied
d. Like a p for c, it must be accompanied by a certified true copy of Proper rem: petition for certiorari & prohibition w/ an
the j or o subject of the petition, copies of all pleadings & application for the issuance of a writ of preliminary
documents relevant & pertinent thereto, & a sworn certification injunction
of non-forum shopping - Where a MD is wrongfully denied under circumstances
- Certiorari- judicial/quasi-judicial functions only attended by a GAD amounting to lack of jurisdiction, prohibition
- Prohibition- includes ministerial functions is the proper remedy to prevent the court from proceeding w/
 Prohibition is an original action the action
- Thus, the decision of a lower court on a petition for prohibition X- mandamus
filed before it, is APPEALABLE.  Observance of the hierarchy of courts
 Availability of other remedies precludes resort to prohibition - If what is assailed relates to acts or omissions of a lower court
R: it is an extraordinary remedy or of a corporation, board, officer, or person, the petition must
 be filed in the RTC exercising jurisdiction over the territorial
area as defined by the Court
C. Mandamus
 Nature & purpose of mandamus
1. Mandamus is an extraordinary writ commanding a tribunal,
corporation, board, officer, or person to do an act required to
be done, as in the ff:
a. When it/he unlawfully neglects the performance of an act
w/c the law specifically enjoins as a duty, & there is no
other plain, speedy, & adequate remedy in the ordinary
course of law. The duty referred herein is one w/c results
from an office, trust, or station
b. When one unlawfully excludes another from the use &
enjoyment of a right or office to which such other is entitled
& there is no other P, S, A remedy in the ordinary course of
law
- Mandamus will not issue to enforce a right w/c is in substantial
dispute or as to w/c a substantial doubt exists
- For mandamus to lie, the act sought to be enjoined must be a
ministerial act/duty. An act is ministerial if the act should be
performed under a given state of facts, in a prescribed manner,
in obedience to the mandate of a legal authority, w/o regard to
or the exercise of the tribunal or corporation’s own judgment
upon the propriety/impropriety of the act done.
 Prayer in a petition for mandamus
a. that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the
court, to do the act required to be done to protect the
rights of the petitioner; and
b. that the R pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
 Requisites for mandamus
a. The plaintiff has a clear legal right to the act demanded. It will
never be issued in doubtful cases
- Mandamus does NOT establish a legal right but merely enforces
one that is already clearly established
b. It must be the duty of the defendant to perform the act bc the
same is mandated by law
c. The defendant unlawfully neglects the performance of the duty
enjoined by law
d. The act to be performed is ministerial, not discretionary &
e. There is no appeal or any other plain, speedy, & adequate
remedy in the ordinary course of law
 Existence of a clear legal right
- A clear legal right is a right w/c is indubitably granted by law or
inferable as a matter of law; if the right is clear & the case is
meritorious, objections raising merely technical questions will
be disregarded
 Ministerial act or duty
1. In matters involving the exercise of judgment & discretion,
mandamus may only be resorted to compel the respondent to
take action, not the manner or the particular way discretion is
to be exercised. Hence, a judge may be compelled to act & rule
on the motion
2. X- against a govt school/official w/ a duty that involves the
exercise of discretion like on matters of admission of students
X- to compel a school to confer upon a graduate his degree w/
honors (R:discretionary acts)
X- claim for re-correction or revision of examination by the PRC
3. Where administrative remedies are available, mandamus does
NOT apply (take note of the XPNs to exhaustion of admin
remedies)
4. Mandamus will not lie to compel a prosecutor to file an info
XPNs: a. If he refuses to include in the info certain persons
whose participation in the crime clearly appears
b.refuses to follow the proper procedure for the
discharge of these persons in order that they may be
utilized as prosecution witnesses

5. Mandamus is proper to compel execution of judgment (F & E)
since it is a matter of right
6. X- to compel the performance of an act prohibited by law
 - to compel the enactment & approval of the necessary
appropriation ordinance & the corresponding
disbursement of municipal funds (re: final money
judgment)
7. Duty of the JBC to submit list of nominees before the start of
the Pres mandatory 90-day period to appoint- ministerial;
mandamus proper
Selection of the candidates- discretionary
 Discretionary acts NOT compellable by mandamus
a. Reconstitution; involves exercise of discretion in the evaluation
of evidence
b. Issuance by the LRA officials of a decree of registration
c. Order the court to decide in a particular manner & for or against
a litigant
 When mandamus may lie to compel discretionary acts
- Where there is gross abuse of discretion, manifest injustice, or
palpable excess of authority
 Contractual obligations, NOT compellable by mandamus
 Nature of the judgment in mandamus
1. A favorable judgment rendered in mandamus is in the nature of
a special judgment. As such, it requires the performance of any
act other than the payment of money or the sale or delivery of
RP or PP the execution of w/c is governed by Sec. 11, Rule 39.
- When a judgment requires the performance of any act other
than those mentioned in the two preceding sections, a certified
copy of the judgment shall be attached to the writ of execution
and shall be served by the officer upon the party against whom
the same is rendered, or upon any other person required
thereby, or by law, to obey the same, and such party or person
may be punished for contempt if he disobeys such judgment.
(Sec. 11, Rule 39)
2. The R who receives an adverse judgment shall be ordered to
perform the act required to be done to protect the rights of the
P & to pay the damages sustained by the P by reason of the
wrongful acts of the R.
 Declaratory relief treated as mandamus
- If the issue involved has far-reaching implications
D. Writ of Continuing Mandamus
- A writ issued by a court in an environmental case directing any
agency/instrumentality of the govt/officer thereof to perform
an act/series of acts decreed by final judgment w/c shall remain
effective until judgment is fully satisfied
- MMDA vs. Concerned Residents of Manila
- They were required from finality of the decision to each submit
to the court a quarterly progressive report of the activities
undertaken in accordance w/ the decision
 When the writ is available
- When any agency, instrumentality of the govt or officer:
a. unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust,
or station in connection with the enforcement or violation
of an environmental law rule or regulation or a right therein
b. unlawfully excludes another from the use or enjoyment of
such right
- no other PSA remedy
 Form & contents of the petition
- Shall be verified
- Allege the facts plus supporting evidence
- Specify that the p concerns an envi law, rule or regulation
- Praying that the judgment be rendered commanding the R to do
an act/series of acts until the judgment is fully satisfied plus pay
damages
- Sworn certification of non-forum shopping
 Where to file the petition b. Juridical person
a. RTC exercising jurisdiction over the territory where the c. Entity authorized by law
actionable neglect or omission occured d. People’s organization
b. CA e. NGO or
c. SC f. Any public interest group accredited by or registered with
 No docket fees any governmental agency
 Action of the court when the petition is filed - May be filed not only on one’s personal behalf but also on
a. May issue orders to expedite the proceedings behalf of persons whose constitutional right to a balanced &
b. Grant a Temporary Environmental Protection Order (TEPO) for healthful ecology is violated
the preservation of the rights of the parties pending such - Actual violation not needed; right is threatened w/ a violation
proceedings sufficient
 Order to comment 2. The violation/ threatened violation is caused by an unlawful
- w/in 10 days; writ is issued as a matter of course if the p is act/omission of:
sufficient in form & substance a. Public officail
 Proceedings after comment is filed or time for filing such expired b. Public employee
a. Hearing (summary) or c. Private indl
b. Require the parties to submit memoranda d. Private entity
- Shall be resolved w/in 60 days w/o delay from the date of 3. The unlawful act/omission involves an environmental damage
submission of the p for resolution of such magnitude as to prejudice the life, health or property of
 Judgment; periodic reports inhabitants in 2 or more cities/provinces
a. Grant the writ  Verified petition; contents
b. Grant such other reliefs as may be warranted 1. Petition- must be verified & contain the personal circumstances
 Comments of petitioner of the petitioner; name & personal circumstances of the
- The P may submit its comments/observations on the execution respondent (if unknown, assumed appellation)
of the judgment 2. Must also contain the ff:
 Return of the writ; final return a. Environmental law, rule, or regulation violated
- Upon full satisfaction of the judgment, the R shall make a final b. Act/omission complained of
return of the writ to the court w/c rendered the judgment by c. Environmental damage of such magnitude as to prejudice
the respondent. If the court finds that the judgment has been the life, health, or property of the inhabitants in 2 or more
fully implemented, the satisfaction of judgment shall be entered cities or provinces
in the court docket d. All relevant & material evidence consisting of the affidavits
E. Writ of Kalikasan of witnesses, documentary evidence, scientific, or other
 Requisites for the writ to be available expert studies, and, if possible, object evidence
1. The writ is available to a: 3. Certification against FS
a. Natural person 4. Reliefs prayed for; may include issuance of TEPO
 Court where petition is filed
- SC/any of the stations of CA
 Docket fee
- P shall be exempt from the payment of docket fees
 Issuance of the writ
1. If p is sufficient in form & substance, the court shall give an
order w/in 3 days: (a) issuing the writ; and (b)requiring the
respondent to file a verified return
 Duty of the COC
- Upon receipt of the order of the court, the COC shall issue the
writ of kalikasan under the seal of the court including the
issuance of a CDO & other temporary reliefs w/c shall be
effective until further orders
 Penalty for refusing to issue/serve the writ;
- If COC (a) unduly delays or (b) refuses to issue writ= contempt
w/o prejudice to other civil, criminal, or administrative actions
- Same with the server
 Service of the writ
1. Upon the R by a court officer/any person deputized by the court
2. Service in person; if not possible, substituted service
3. The server is required to retain a copy of the writ on w/c to
make a return of service
 Return of respondent; non-extendible
1. w/in 10 days after service of the writ; non-extendible; motion
for extension prohibited
2. motion for BOP, postponement, MD=prohibited
 Contents of the verified return of respondent
1. Shall contain all defenses to show that the R did not:
a. Violate
b. Threaten to violate
c. Allow the violation of any envi law, rule, regulation or
d. Commit any act resulting to environmental damage of such
magnitude as to prejudice the life, helath, or property of
inhabitants in 2 or more cities/provinces
2. General denial=admission
3. The return shall include affidavits of witnesses, documentary
evidence, scientific or other expert studies, and, if possible,
object evidence, in support of the defense of the R
 Waiver of defenses
- All defenses not raised in the return shall be deemed waived
 Effect of failure to file the return
X- default; motion to declare the R in default= prohibited motion
 - court shall proceed to hear the petition ex parte
 Contempt proceedings
1. The respondent who (a) refuses, (b) unduly delays the filing of a
return, or (c) makes a false return may, after hearing, be
punished for indirect contempt (Rule 71)
2. The same contempt proceedings may apply to any person who
(a) disobeys or (b) resists a lawful process or order of the court
 Preliminary conference; modes of discovery
- PC- discretionary on the part of the court
- P: 1.To simplify the issues
2.To determine the possibility of obtaining
stipulations/admissions from the perties
- A party may file a motion for certain reliefs w/c must be
verified:
a. Ocular inspection order; and
b. Production/inspection of documents or things
 Hearing; priority given
- After the PC, the p shall be set for hearing. The period of the
hearing, including the PC, shall not extend beyond 60 days &
shall be given the same priority as p for writs of habeas corpus,
amparo & habeas data.
 Submission of case for decision; submission of memoranda
- After hearing, the court shall issue an order submitting the case
for decision. The court may, however, require the filing of
memoranda w/in a non-extendible priod of 30 days from the
date the petition is submitted for decision. The memoranda
submitted may be, if possible, in electronic form.
 Judgment; period to render
 - w/in 60 days from the time the p is submitted for decision; RULE 66
judgment shall either deny/grant the privilege of the writ of QUO WARRANTO
kalikasan  Nature & purpose of the action
 Reliefs w/c the court may grant under the writ 1. A quo warranto proceeding is generally defined as an action
Directing R: against a person who usurps, intrudes into, or unlawfully holds
a. To permanently cease & desist from committing acts/neglecting or exercises a public office or even a public franchise
the performance of a duty in violation of envi laws resulting in 2. An action for the usurpation of a public (a) office, (b) position,
environmental destruction/damage or (c) franchise that is commenced by a verified petition in the
b. Public official, govt agency, private person/entity to monitor name of the RP
strict compliance w/ the decision & orders of the court  Quo warranto distinguished from mandamus
c. To make periodic reports on the execution of the final QW- brought against the holder of the office, who is the person
judgment; and claiming the office as against the petitioner
d. Such other reliefs w/c relate to the right of the people to a M- brought against the person who is responsible for unlawfully
balanced & healthful ecology or to the protection, preservation, excluding the petitioner from office, like an appointing authority
rehabilitation, or restoration of the environment, except the  A petition generally brought in the name of the Republic; verified
award of damages to indl petitioners. petition
 Appeal - Commenced in the name of RP by a verified petition (Sec. 1,
- SC; Rule 45; w/in 15 days from the date of notice of adverse Rule 66)
judgment or denial of MR - In certain instances, the p may be brought by an indl in his own
- May raise questions of fact name if he claims to be entitled to a public office usurped or
 Prohibited pleadings unlawfully held or exercised by another (Sec. 5)
a. Counterclaim;  Against whom petition may be brought
b. Cross-claim; 1. The petition for the usurpation of a public office, position, or
c. Third-party complaint; franchise may be brought against:
d. Reply a. Person;
 Prohibited motions b. Public officer; or
a. MD c. Association
b. Motion for extension of time to file return 2. If brought against a person, said person is one who usurps,
c. Motion for postponement intrudes into, or unlawfully holds or exercises a public office,
d. BOP position, or franchise
e. Motion to declare R in default If against a PO, said officer is one does or suffers an act w/c, by
 Filing of the petition (W of K) is NOT a bar to the filing of other the provision of law, constitutes a ground for the forfeiture of
actions his office
- Civil, criminal, or administrative
 If filed against an association, it is one w/c acts as a corporation
w/in the PH w/o being legally incorporated or w/o lawful
authority to do so
 Who may commence the petition
a. Sol Gen
b. Public prosec
c. Private person
 When the action must be commenced by the govt
- When directed by the President of the Philippines, or when
upon complaint or otherwise he has good reason to believe that
any case specified in the Rules can be established by proof, the
Solicitor General or a public prosecutor must commence the
action. (Sec. 2, Rule 66)
 When the action may be commenced with the permission of the
court
1. The Sol Gen or public prosec may bring the action at the request
& upon the relation of another person with the permission of
the court in w/c the action is to be commenced
2. The officer bringing it may first require an indemnity for the
expenses and costs of the action in an amount approved by and
to be deposited in the court by the person at whose request
and upon whose relation the same is brought. (Sec. 3, Rule 66)
3. When the application is made for permission to commence such
such action, the court shall direct that notice be given to the
respondent so that he may given the opportunity to be heard &
to oppose the application.
If permission is granted, the court shall issue an order to that
effect, copies of which shall be served on all interested parties,
and the petition shall then be filed within the period ordered by
the court. (Sec. 4, Rule 66)
 When an individual may commence the action (w/o intervention of
Sol Gen/public prosec)
1. A person claiming to be entitled to a public office or position
usurped or unlawfully held or exercised by another may bring
an action therefor in his own name (Sec. 5, Rule 66)
2. He must show that he has a clear right to the office allegedly
being held by another; one who does not claim to be entitled to
the office allegedly usurped or unlawfully held/exercised by
another CANNOT question his title by quo warranto. Mere
assertion of a right to be appointed to the office is NOT
sufficient regardless of the alleged flaws in the title of
respondent.
 Allegations when the petition is filed against a usurper;parties
- When the action is against a person for usurping a public office,
position or franchise, the petition shall set forth: (a) the name of
the person who claims to be entitled thereto, if any, (b)
petitioner’s right to the same and (c) unlawful possession of the
office, position, or franchise by the respondent.
- All persons who claim to be entitled to the public office,
position or franchise may be made parties. In the same action,
The court shall determine their respective rights to such public
office, position or franchise (Sec. 6, Rule 66)
 Jurisdiction and venue
- A quo warranto petition under the preceding six sections can be
brought only in the Supreme Court, the Court of Appeals, or in
the Regional Trial Court exercising jurisdiction over the
territorial area where the respondent or any of the respondents
resides.
- When the Solicitor General commences the action, it may be
brought in a Regional Trial Court in the City of Manila, in the
Court of Appeals, or in the Supreme Court.
 Quo warranto in the Sandiganbayan
- Arising or that may arise in cases filed or w/c may be filed under
EO Nos. 1, 2, 14, 14-A provided that the jurisdiction over these
petitions shall not be exclusive of the SC
 Quo warranto under the Omnibus Election Code
- Any voter contesting the election of any Member of the
Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the RP shall file a sworn
 petition for quo warranto w/ the COMELEC w/in 10 days after determine between them who obtained the majority of the legal
the proclamation of the results of the election. votes cast
- Municipal/brgy officer- RTC/MTC - A controversy where the P is seeking to be seated as the 2nd
- A quo warranto proceeding may be filed w/ the MTC when the nominee of a party list organization is neither an election
election of a barangay officer is contested protest nor a quo warranto proceeding
- Where the issue is the qualification of an elected member of the  Period for filing
HR, a quo warranto petition is correctly filed w/ the HRET; no - An action for quo warranto by reason of ouster from a public
forum shopping even if COMELEC already resolved the issue office shall be filed w/in 1 year after the cause of such ouster, or
when he was still a candidate the right of the petitioner to hold such office or position, arose.
 Quo warranto in the OEC (elective office) vs quo warranto in an  Judgment in quo warranto proceedings
appointive office 1. In case of usurpation of a public office, when the
ELECTIVE APPOINTIVE respondent is found guilty of usurping into, intruding into,
Governing law: election law ROC or unlawfully holding or exercising a public office, position
Issue: eligibility/ineligibility of the Legality/ illegality of the or franchise, judgment shall include the ff:
person elected or his occupancy of the office by a. Respondent shall be ousted and excluded from the
loyalty/disloyalty to the Republic virtue of an appointment
office;
Filed w/in 10 days after the w/in 1 year from the time the
proclamation of the results of the cause of ouster, or the right of b. The petitioner or relator, as the case may be, shall
election the petitioner to hold the recover his costs; and
office/position arose c. Such further judgment determining the respective
Brought in the COMELEC, RTC, SC, CA, RTC rights in and to the public office, position or franchise of
MTC all the parties to the action as justice requires. (Sec. 9,
P may be any voter even if not P is the person claiming to be Rule 66)
entitled to the office entitled to the office
2. The court may render judgment for costs against either the
Where the person elected is The court determines who is
petitioner, relator, or respondent, or the person/s claiming
ineligible, the court cannot legally appointed, & can &
declare the candidate occupying ought to declare the person to be a corporation. The court may also apportion the costs,
the 2nd place as elected* entitled to occupy the office as justice requires (Sec. 12)
*take note of the Maquiling case; winner in an election is the  Rights of persons adjudged entitled to public office
qualified candidate w/ the most number of votes 1. The person adjudged to be entitled to the public office may
 Quo warranto distinguished from an election protest exercise the ff. rights after taking his oath of office & executing
COA: the required bond:
Quo warranto- eligibility of the candidate or lack of it, or his being A. Take upon himself the execution of the office;
disloyal to the Republic; to unseat the ineligible person from the B. Immediately thereafter demand of the respondent all the
office but not to install P in his place books & papers in the R’s custody or control appertaining to
Election protest: irregularity in the conduct of elections; electoral the office to w/c the judgment relates.
frauds; proposes to oust the winning candidate from office; to
 2. If the respondent refuses or neglects to deliver any book or
paper pursuant to such demand, he may be punished for
contempt as having disobeyed a lawful order of the court
- Indirect contempt; charge in writing must be filed & an
opportunity given to the respondent to be heard
3. The person adjudged entitled to the office may also recover the
damages sustained by him by reason of the usurpation.
 Period to claim damages
- If the petitioner is adjudged to be entitled to the office, he may
sue for damages against the alleged usurper w/in 1 yr from the
entry of judgment establishing his right to the office in question.
 Quo warranto against corporations
- Against an association which acts as a corporation within the
Philippines without being legally incorporated or without lawful
authority so to act.
- May be brought only against a de facto corporation one w/c,
in GF, claims to be a corporation being organized pursuant to a
valid law, & assumes corporate powers bc it was issued a cert.
of incorporation; corpo w/c exists in fact but NOT in law
- The due incorporation of any corporation claiming in good faith
to be a corporation under CC, & its right to exercise corporate
powers, shall not be inquired into collaterally in any private suit
to w/c such corporation may be a party. Such inquiry may be
made by the Sol Gen in a quo warranto proceeding. (Sec. 20, CC)
RULE 67
EXPROPRIATION
 Preliminaries
 - nat’l govt
 -LGU upon a valid delegation; have no inherent power
of eminent domain; must be in accordance w/ the
delegating law
- Just compensation- full & fair equivalent of the property taken;
the measure is not the taker’s gain but the owner’s loss; at the
time of the actual taking of the gov’t
 Government has no unrestricted title to the land expropriated
- A condemnor should commit to use the property pursuant to
the purpose stated in the petition for expropriation, failing w/c
it should file another petition for the new purpose. If not, then
it behooves the condemnor to return the said property to its
private owner, if the latter so desires.
- The taking of a private land is always conditioned on its
continued devotion to its public purpose
 Exercise of eminent domain by LGUs
Requisites (under LGC):
a. An ordinance is enacted by a local legislative council to exercise
the power of eminent domain, or pursue expropriation
proceedings over a particular private property through its chief
executive;
b. The power of eminent domain is exercised for public use,
purpose or welfare, or for the benefit of the poor & the
landless;
c. The power may be exercised thru its chief executive acting
pursuant to the enacted ordinance;
d. There is payment of just compensation, as required under the
Constitution, & other pertinent laws; and
e. A valid & definite offer has been previously made to the owner
of the property sought to be expropriated, but said offer was
not accepted.
 How the LGU may immediately take possession of the property
Reqs:
a. Expropriation proceedings are filed; and
b. The local govt makes a deposit w/ the proper court of at least
15% of the fair market value of the property based on the
current tax declaration of the property to be expropriated at
the time of the taking of the property.
 Expropriation NOT limited to acquisition of title
 - includes right of way easement resulting in a restriction or
limitation on property rights over the land
 Stages in the expropriation process
1st stage: determination of the authority of the plaintiff to
expropriate (necessity & public purpose)
- Will end in the issuance of an order of expropriation if the court
finds for the plaintiff, or in the dismissal of the complaint if it
finds otherwise.
- Oder of dismissal/condemnation- FINAL; “no objection to the
exercise of the right of condemnation (or the propriety thereof)
shall be filed or heard
2nd stage: determination of just compensation thru the court-
appointed commissioners
- It is only upon the completion of the two stages that
expropriation is sadi to be completed. The process is NOT
complete until payment of JC
 Matters to be alleged in a complaint for expropriation
- Filing of a verified complaint w/c shall:
a. State w/ certainty the right of the plaintiff to expropriation
& the purpose thereof;
b. Describe the real/personal property sought to be
expropriated; and
c. Join as defendants all persons owning or claiming to own, or
occupying, any part of the property or interest therein,
showing, so far as practicable, the interest of each
defendant. If the plaintiff cannot identify the real owners w/
accuracy, averment to that effect shall be made in the
complaint.
 Service of summons; who may be defendants
1. The defendant shall be served w/ summons
2. Defendants herein- all those who have lawful interest in the
property to be condemned, including a mortgagee, lessee, &
vendee in possession under an executory contract; they are
entitled to a share in the award
- If a person claiming an interest in the land sought to be
condemned is NOT made a party, he is given the right to
intervene & lay claim to the compensation.
 Court with jurisdiction
- RTC; incapable of pecuniary estimation regardless of the value
of the subject property
 Defenses & objections in the answer
1. The defendant shall serve an answer if he has any objection to
the (a) filing of the complaint, (b) allegations in the complaint,
or (c) any objection or defense to the taking of his property,
within the time stated in the summons. (Sec. 3, Rule 67)
- In expropriation proceedings, the period w/in which to file an
answer is stated in the summons; in OCA, it is specified in Rule
11
2. The answer shall specifically designate or identify the property
in which he claims to have an interest, state the nature and
extent of the interest claimed, and adduce all his objections and
defenses to the taking of his property bc those not adduced are
deemed waived.
- Similar to the omnibus motion rule
 Remedy when some defenses are omitted
1. In order to prevent a waiver of those defenses not alleged, seek
leave to amend the answer w/in 10 days from the filing thereof.
Leave is required bc of the tenor of the rules: “the court, in the
interest of justice, may permit amendments to the answer to be
made not later than ten (10) days from the filing thereof.”
2. In OCA, amendment is a matter of right as long as no responsive
pleading is served yet; no leave is required
In expropriation proceedings, however, the permission of the
court is always required before the answer is amended for the
purpose of incorporating defenses & objections not so alleged
(Sec. 3, Rule 67)
 Counterclaims, cross-claims or third-party complaints
- In OCA, the D may file an answer w/ a counterclaim, cross-claim,
or w/ leave of court, file a third-party complaint.
 - Under expropriation, none of these pleadings shall be allowed
or alleged in the answer or in any subsequent pleading.
 Waiver of defenses or failure to answer; effect
- While it is the rule that the failure to allege defenses &
objections in the answer will have the effect of a waiver of such
defenses, the D who does not file an answer, will not totally lose
his standing in court unlike the D in an OCA who cannot take
part in the trial if he is declared in default for failure to file his
answer.
- At the trial of the issue of just compensation whether or not a
defendant has previously appeared or answered, he may
present evidence as to the amount of the compensation to be
paid for his property, and he may share in the distribution of the
award (Sec. 3, Rule 67)
 When an answer is NOT required
- An answer is NOT required if a defendant has no objection or
defense to the action or the taking of his property. Instead, he
may file and serve (a) a notice of appearance and (b) a
manifestation to the fact that he has no objection or defense to
the taking of his property within the time stated in the
summons. In the manifestation, he shall specifically designate or
identify the property in which he claims to be interested, within
the time stated in the summons. Thereafter, he shall be entitled
to notice of all proceedings affecting the property even if he has
no objections/defenses.
 Entry upon the property or possession thereof; deposit and notice
1. Upon the filing of the complaint or at any time thereafter and
after due notice to the defendant, the plaintiff shall have the
right to take or enter upon the possession of the real property
involved if he deposits with the authorized government
depositary an amount equivalent to the assessed value of the
property for purposes of taxation to be held by such bank
subject to the orders of the court. Such deposit shall be in
money, unless in lieu thereof the court authorizes the deposit of
a certificate of deposit of a government bank of the Republic of
the Philippines payable on demand to the authorized
government depositary.
2. If personal property is involved, its value shall be provisionally
ascertained and the amount to be deposited shall be promptly
fixed by the court.
 Effect of making the required deposit
1. After such deposit is made the court shall order the sheriff or
other proper officer to forthwith place the plaintiff in
possession of the property involved and promptly submit a
report thereof to the court with service of copies to the parties.
- Prior hearing not required before immediate possession can be
granted; notice to the defendant & the making of the required
deposit enough
- The defenses by the owner against immediate possession can
be considered on the trial on the merits
 Purpose of the deposit
- Serves as an advanced payment to the owner of the property
should the court decide in favor of the P, and should it be
otherwise, the deposit shall serve as indemnity against any
damage w/c the owner may have sustained.
 Entry upon the property or possession under RA 8974; immediate
payment
- RA 8974: An Act to Facilitate the Acquisition of Right-of-Way,
Site or Location for National Govt Infrastructure Projects & for
Other Purposes
- Modified sec. 2, rule 67
- Rule 67: initial deposit be equivalent to the assessed value of
the property for purposes of taxation
- RA 8974: immediately pay the amount equivalent to the sum of
(a) 100% of the value of the property based on the current
relevant zonal valuation of the BIR and (b) the value of the
improvements and/or structures as determined under Sec. 7
 New system of immediate payment under RA 8974; application of
the rule
 - RA 8974: requires that the Govt make a direct payment to the
property owner before the writ may issue
- Applies only in instances when the natl govt expropriates
property for natl govt infrastructure projects.
 Deposit under the LGC
- At least 15 % of the FMV of the property based on the current
tax declaration
 Order of expropriation
- The court may issue an order of expropriation (or
condmenation) declaring that the plaintiff has a lawful right to
take the property sought to be expropriated, for the public use
or purpose described in the complaint, upon the payment of
just compensation. This order shall issue in any of the ff. cases:
a. In the event the objections of the defendant are overruled;
or
b. When no party appears to object to or defend against the
expropriation.
 No dismissal by plaintiff upon rendition of the order of
expropriation
XPN: upon such terms as the court deems just & equitable
 Appeal from the order of expropriation
- By any party aggrieved by such order
 Matters not affected by the appeal
- Such appeal, however, shall not prevent the court from
determining the just compensation to be paid. (Sec. 4, Rule 67)
- The right of the plaintiff to enter upon the property of the
defendant and appropriate the same for public use or purpose
shall not be delayed by an appeal from the judgment.
 Rule if the trial court’s decision is reversed on appeal
- If the appellate court determines that plaintiff has no right of
expropriation, judgment shall be rendered ordering the
Regional Trial Court to forthwith enforce the restoration to the
defendant of the possession of the property, and to determine
the damages which the defendant sustained and may recover
by reason of the possession taken by the plaintiff.
 Ascertainment of just compensation; hearing mandatory
1. Order of expropriation- limited to the settlement of issue as to
the right of expropriation & propriety of the public
use/purpose; does not include determination of JC
2. Upon the rendition of the order of expropriation, the court shall
appoint not more than three (3) competent and disinterested
persons as commissioners to ascertain and report to the court
the just compensation for the property sought to be taken.
3. Objections to the appointment of any of the commissioners
shall be filed with the court within ten (10) days from service,
and shall be resolved within thirty (30) days after all the
commissioners shall have received copies of the objections.
4. The commissioners are entitled to fees w/c shall be taxed as a
part of the costs of the proceedings. All costs, except those of
rival claimants litigating their claims, shall be paid by the
plaintiff, unless an appeal is taken by the owner of the property
and the judgment is affirmed, in which event the costs of the
appeal shall be paid by the owner.
5. Appointment of commissioners- mandatory
6. Trial, w/ the aid of the commissioners is a substantial right that
may not be done away with capriciously or for no reason at all.
Where no trial or hearing was conducted to afford the parties
the opportunity to present their own evidence, the court should
disregard the commissioners’ findings; absence of trial violative
of due process
7. Evidence may be introduced by either party before the
commissioners who are authorized to administer oaths on
hearings before them, and the commissioners shall, unless the
parties consent to the contrary, after due notice to the parties,
to attend, view and examine the property sought to be
expropriated and its surroundings, and may measure the same,
after which either party may, by himself or counsel, argue the
case. The commissioners shall assess the consequential
damages to the property not taken and deduct from such
consequential damages the consequential benefits to be
 derived by the owner from the public use or purpose of the
property taken, the operation of its franchise by the corporation
or the carrying on of the business of the corporation or person
taking the property. But in no case shall the consequential
benefits assessed exceed the consequential damages assessed,
or the owner be deprived of the actual value of his property so
taken.
8. Measure: NOT the taker’s gain but the owner’s loss
 Judgment as to compensation
1. The court may, after hearing, accept the report and render
judgment in accordance therewith, or, for cause shown, it may
recommit the same to the commissioners for further report of
facts, or it may set aside the report and appoint new
commissioners; or it may accept the report in part and reject it
in part and it may make such order or render such judgment as
shall secure to the plaintiff the property essential to the
exercise of his right of expropriation, and to the defendant just
compensation for the property so taken.
 Appeal from the judgment as to compensation; effect
1. The right of the plaintiff to enter upon the property of the
defendant and appropriate the same for public use or purpose
shall not be delayed by an appeal from the judgment. But if the
appellate court determines that plaintiff has no right of
expropriation, judgment shall be rendered ordering the
Regional Trial Court to forthwith enforce the restoration to the
defendant of the possession of the property, and to determine
the damages which the defendant sustained and may recover
by reason of the possession taken by the plaintiff (Sec. 11, Rule
67)
2. If the judgment is affirmed on appeal, the costs of the appeal
shall be paid, not by the plaintiff, but by the owner of the
property who appealed the judgment. (Sec. 12)
3. Both order of expropriation and judgment of the court are
APPEALABLE.
 When to ascertain just compensation
1. At the time of taking or the filing of the compliant, whichever
came first.
2. LGC- based on the FMV at the time of the taking of the
property.
 Payment of just compensation
1. The payment shall consist of the amount fixed in the judgment
including the legal interest from the taking of possession of the
property.
2. If the defendant declines to receive the amount tendered, the
same shall be ordered to be deposited in court and such deposit
shall have the same effect as actual payment thereof to the
defendant or the person ultimately adjudged entitled thereto.
 Payment in case of uncertain ownership; conflicting claims
- If the ownership of the property taken is uncertain, or there are
conflicting claims to any part thereof, the court may order any
sum or sums awarded as compensation for the property to be
paid to the court for the benefit of the person adjudged in the
same proceeding to be entitled thereto.
 Right of plaintiff after judgment & payment
- Upon payment by the plaintiff to the defendant of the
compensation fixed by the judgment, with legal interest
thereon from the taking of the possession of the property, or
after tender to him of the amount so fixed and payment of the
costs, the plaintiff shall have the right to:
a. enter upon the property expropriated; and
b. to appropriate it for the public use or purpose defined in
the judgment; or
c. to retain possession already taken in accordance w/ sec. 2,
Rule 67
 Rule if payment is refused
- If the defendant and his counsel absent themselves from the
court, or decline to receive the amount tendered, the same
shall be ordered to be deposited in court and such deposit shall
have the same effect as actual payment thereof to the
defendant or the person ultimately adjudged entitled thereto.
 Non-payment of just compensation; effect
- Five year limitation; private owner entitled to recover
possession
 Recording of the judgment & its effect
- The judgment entered in expropriation proceedings shall state
definitely the particular property or interest expropriated, w/c
shall be adequately described.
- The judgment shall also state definitely the nature of the public
use or purpose for w/c the property is expropriated.
- When real estate is expropriated, a certified copy of such
judgment shall be recorded in the registry of deeds of the place
in which the property is situated, and its effect shall be to vest
in the plaintiff the title to the real estate so described for such
public use or purpose.
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
1. REM- accessory contract; creates a real right w/c follows the
property whoever the owner may be after the constitution of
the mortgage; the new owner who knows of the mortgage (or if
registered) is bound by the mortgage even if he is not a party to
the contract
2. Mortgagor not a debtor in the principal obligation-
accommodation mortgagor; liability limited to the mortgaged
property & not to the entire loan
3. Even if not registered- binding between the parties
4. Several mortgages over the same property allowed
5. If the 2nd mortgagee files a complaint for foreclosure, he is not
prohibited from impleading the 1st mortgagee. If the 1st ME is
not impleaded, he may intervene in the action if he desires, and
if the obligation in his favor is already due & payable.
 Dragnet clause or blanket mortgage clause
1. DC- security for past, present & future indebtedness; for
convenience; future debts must be sufficiently described in the
mortgage contract
 When foreclosure is proper; demand to pay
1. Default first upon a valid demand
XPN: contrary stipulation
 Alternative remedies of the creditor; splitting a single COA
1. To file an action for collection of sum of money (PA); or
2. To foreclose the mortgage (RA)
- Election of the first bars the other; mere filing of one constitues
a waiver of the other regardless of w/n the decision had
attained finality; dismissal justified; if two are filed=splitting a
single COA
R: single COA: recovery of debt
- As to an EF, such mode is deemed elected by the filing of the
application for foreclosure w/ the Office of the Sheriff of the
Province where the sale is to be made
 Pactum commissorium; not a valid agreement
- Stipulation for automatic appropriation by the CR in case of
non-payment
 Court with jurisdiction
- Traditionally, RTC (incapable of pecuniary estimation)
- Now, based on the assessed value & mortgage debt
 - real actions or those affecting title to real property, or for
the recovery of possession, or for the partition or
condemnation of, or forecloure of REM
 Modes of foreclosure of REM; judicial foreclosure & extrajudicial
foreclosure
a. JF (Rule 68)
b. EF (Act 3135)
- EF only applies if there is a special power inserted in or attached
to the REM contract allowing an extrajudicial foreclosure sale;
otherwise, Rule 68 applies
 Allegations in a complaint for foreclosure
a. The date & due execution of the mortgage;
b. The assignments of the mortgage, if any;
c. The names & residences of the mortgagor & mortgagee;
d. A description of the mortgaged property;
 e. A statement of the date of the note & other documentary
evidence of the obligation secured by the mortgage;
f. The amount claimed to be unpaid thereon; and
g. The names and residences of all persons having or claiming an
interest in the property subordinate in right to that of the
holder of the mortgage, all of whom shall be made defendants
in the action.
- Also included as defendants are the junior encumbrancers; the
persons who may have, under the contract, obligated to pay the
mortgage debt; or those who may have control over the
property mortgaged
- Stipulation forbidding the owner from alienating the immovable
mortgaged shall be void
 Procedure
- Because of the absence of special provisions in Rule 68 on the
mechanics of the suit, foreclosure suit will proceed like an
ordinary civil action insofar as they are not inconsistent with
Rule 68.
 Judgment on foreclosure; payment or sale
a. After trial, the court finds that matters set forth are true, it shall
render a judgment containing the ff. matters:
1. Ascertainment of the amount due to the plaintiff upon the
mortgage debt or obligation, including interest & other charges as
approved by the court, as well as costs;
2. Judgment for the sum found due;
3. Order that the amount found due be paid to the court or to the
judgment obligee within a period of not less than 90 days nor more
than 120 days from the entry of judgment &
4. Admonition that, in default of such payment, the property shall be
sold at public auction to satisfy the judgment
b. Judgment= final adjudication; hence, subject to appeal/other post-
judgment remedies
c. Period given herein NOT merely a procedural requirement;
substantial= “equity of redemption”right to extinguish the
mortgage & retain ownership of the property by paying the debt
d. The payment may be made even after the FS provided it is made
before the sale is confirmed by the court
e. Right of redemption- not available to judicial foreclosure sale
XPN: if foreclosure is in favor of banks as mortgagees (GBL of 2000);
1 year from registration of cert. of sale
- In EF, when the MR is a juridical person= redemption cannot be
made after the lapse of 3 mos. from the foreclosure
 Sale of the mortgaged property; effect
- If the MR fails to pay the sum w/in the period, the ME files a
motion for the sale of the mortgaged property; motion
mandatory
- Motion- non-litigable & ex parte (jurisprudence); failure to
notify DR would not invalidate the sale
- The manner of sale shall follow the rules governing execution
sales under Rule 39
- The provisions of sections 31 (manner of use of the property
pending the redemption), 32 (disposition of the rents, earnings,
and income of the property pending the redemption) and 34
(recovery of the price of the sale of Rule 39 shall be applicable
to the judicial foreclosure of real estate mortgages under this
Rule insofar as the former are not inconsistent with or may
serve to supplement the provisions of the latter.
 Confirmation of the sale
1. After the foreclosure sale has been effected, the ME should file
a motion for the confirmation of the sale. Unlike the motion for
the sale of the MP, w/c is done ex parte, the motion for the
confirmation of the sale requires a notice & hearing.
In the hearing, the MR will be allowed the opportunity to show
cause why the sale should not be confirmed.
Lack of notice= confirmation of the sale is vitiated; thus, he may
still exercise his equity of redemption
2. After hearing & the court finds valid grounds for its
confirmation, it shall issue an order confirming the foreclosure
sale. Said order is a judgment in itself & is deemed a final
 adjudication on the propriety & merits of the sale. It is thus
appealable.
 Effect of confirmation of the sale
- It shall operate to divest the rights in the property of all the
parties to the action & vest their rights in the purchaser,
subject to such rights of redemption as may be allowed by law.
 Efect of finality of the confirmation of the sale; writ of possession
1. The order of confirmation is appealable; if not appealed w/in
the period, it becomes final.
2. Upon the finality of the order of confirmation or upon the
expiration of the period of redemption when allowed by law,
the purchaser at the auction sale or last redemptioner, if any,
shall be entitled to the possession of the property unless a third
party is actually holding the same adversely to the judgment
obligor. The said purchaser or last redemptioner may secure a
writ of possession, upon motion, from the court which ordered
the foreclosure.
- Motion needed; ex parte; issuance-matter of right; however,
issuance of the writ does NOT bar a separate case for
annulment of the mortgage & foreclosure sale
- Pending suit for annulment- does not defeat the right of the
purchaser to a writ of possession.
X- injunction
 Disposition of the proceeds of the foreclosure sale
- The amount realized from the foreclosure sale of the mortgaged
property shall, after deducting the costs of the sale, be paid to
the person foreclosing the mortgage, and when there shall be
any balance or residue, after paying off the mortgage debt due,
the same shall be paid to junior encumbrancers in the order of
their priority, to be ascertained by the court, or if there be no
such encumbrancers or there be a balance or residue after
payment to them, then to the mortgagor or his duly authorized
agent, or to the person entitled to it (Sec. 4, Rule 68)
 Registration of the sale
1. A certified copy of the final order of the court confirming the
sale shall be registered in the registry of deeds. If no right of
redemption exists, the certificate of title in the name of the
mortgagor shall be cancelled, and a new one issued in the name
of the purchaser (Sec. 7, Rule 68)
2. Where a right of redemption exists, the certificate of title in the
name of the mortgagor shall not be cancelled, but the
certificate of sale and the order confirming the sale shall be
registered and a brief memorandum thereof made by the
registrar of deeds upon the certificate of title. In the event the
property is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief memorandum
thereof shall be made by the registrar of deeds on said
certificate of title.
3. If the property is not redeemed, the final deed of sale executed
by the sheriff in favor of the purchaser at the foreclosure sale
shall be registered with the registry of deeds; whereupon the
certificate of title in the name of the mortgagor shall be
cancelled and a new one issued in the name of the purchaser.
 Deficiency judgment; when there is no deficiency judgment
1. If upon the sale of any real property, there be a balance due to
the plaintiff after applying the proceeds of the sale, the court,
upon motion, shall render judgment against the defendant for
any such balance for which, by the record of the case, he may
be personally liable to the plaintiff, upon which execution may
issue immediately if the balance is all due at the time of the
rendition of the judgment; otherwise; the plaintiff shall be
entitled to execution at such time as the balance remaining
becomes due under the terms of the original contract, which
time shall be stated in the judgment (Sec. 6, Rule 68)
- Deficiency judgment- appealable
2. No independent action need be filed to recover the deficiency
from the defendant. The DJ shall be rendered upon motion of
the mortgagee.
 3. Accomodation MR- not libale to the deficiency unless he the inheritance. It is merely a designation & segregation of that
expressly assumes such obli part w/c belongs to each heir.
4. DJ- in personam; hence, a non-resident, who at the time of filing 3. Partitition pressuposes co-ownership; division of property
of the action for foreclosure & during the pendency of the cannot be ordered unless the existence of co-ownership is
proceedings was outside the PH, jurisdiction over his person established; partititon cannot lie if the claimant has no rightful
mandatory interest in the property
 Rule in case there is a surplus instead of deficiency 4. Basis: no co-owner shall be obliged to remain in the co-
- It is the duty of the mortgagee to return to the mortgagor any ownership. He may demand partition anytime insofar as his
surplus in the selling price during the foreclosure sale. share is concerned.
 Summary of distinctions between judicial foreclosure & extrajudicial 5. Effect: termination of the co-ownership; to make the previous
foreclosure of REM co-owners the absolute & exclusive owner of the share allotted
JUDICIAL FORECLOSURE EXTRAJUDICIAL FORECLOSURE to him
Governed by ROC Act 3135 6. Instances when a co-owner may not demand partition:
Involves the filing of an Does not require the filing of an a. Agreement among the co-owners not to divide it for a
independent action action certain period of time but not exceeding 10 yrs. This term
Equity of redemption
may however be extended by a new agreement
No right of redemption except Right of redemption exists
when the mortgagee is a b. When it is prohibited by the donor/testator for a period not
banking institution exceeding 20 yrs
There could be a deficiency No DJ since no judicial c. When partition is prohibited by law
judgment rendered in the same proceedings; though recovery of d. When the property is not subject to a physical division & to
proceeding the deficiency is allowed do so would render it unserviceable for the use for w/c it is
Recovery of deficiency done by Recovery is through an intended
mere motion for a DJ independent action
e. When the condition imposed upon voluntary heirs before
they can demand partition has not yet been fulfilled
RULE 69  Prescription of action; effect
PARTITION 1. Prescription does not run against a co-owner as long as there is
 Preliminaries an express/implied recognition of the co-ownership
1. Partition- separation, division, & assignment of a thing held in 2. A co-owner may acquire ownership by acquisitive prescription
common among those to whom it may belong where there exists a clear repudiation of co-ownership & the
2. Partition among heirs is not legally deemed a conveyance of co-owners are apprised of the claim of adverse & exclusive
real property resulting in change of ownership. It is NOT a ownership
transfer of property from one to the other, but rather, it is a  Court with jurisidiction
confirmation or ratification of title/right of property that an heir - RTC before
is renouncing in favor of another heir who accepts & receives - Now, dependent on the assessed value of the property
- If primary purpose is annulment of title & docus: RTC
 Modes of partition
a. By agreement of the parties or
b. By judicial proceedings when the parties cannot reach an
agreement
 Stages/phases in partition
1. Determination of W/N a co-ownership exists & a partition is
proper
2. When parties are unable to agree upon the partition: it shall be
done by the court w/ the assistance of not more than 3
commissioners
- May also include rendition of the accounting & court approval;
award for the recovery by the parties entitled of their just share
in the rents & profits of the real estate
 Multiple appeals
- The action for partition is subject to multiple appeals & would
require a record on appeal. Multiple appeals are allowed in
special proceedings, actions for recovery of property with
accounting, actions for partition of property with accounting,
SCA of eminent domain & foreclosure of mortgage. The
rationale behind allowing more than 1 appeal in the same case
is to enable the rest of the case to proceed in the event that a
separate & distinct issue is resolved by the court and held to be
final.
 Who may file action for partition; defendants
1. By the person having the right to compel the partition of real
estate or of an estate composed of personal property, or of
both real & personal property
2. Plaintiff- person who is supposed to be a co-owner of the
property or estate sought to be partitioned
Defendants- all the co-owners
3. All the co-owners (as indispensable parties) must be joined;
action will not lie w/o the joinder of all co-owners & other
persons having interest in the property
 Matters to be alleged in the complaint
1. The plaintiff shall (a) state in his complaint (i) the nature and
extent of his title, and (ii) an adequate description of the real or
personal estate of which partititon is demanded, and (b) join as
defendants all other persons interested in the property. He
must also include a demand for an accounting of the rents,
profits, & other income from the property w/c he may be
entitled to as his share
- These cannot be demanded in another action bc they are parts
of the COA for partition. These will be barred if not set up in the
same action pursuant to the rule against splitting a single COA.
2. When the allegations in the complaint allege that the plaintiff
asserts exclusive ownership of the property sought to be
partitioned, the nature of the action is NOT one for partition but
an action for the recovery of property.
 Order for partition; final order is appealable
1. During the trial, the court shall determine W/N the P is truly a
co-owner, that a co-ownership exists, & that a partition is not
legally proscribed. If the court finds that a partition would be in
order, & that the P has a right to demand partition, the court
will issue an order for partition among all the parties in interest.
2. Final order decreeing (a) partition and (b) accounting is
APPEALABLE.
 Partition by agreement
1. Thereupon the parties may, if they are able to agree, make the
partition among themselves by proper instruments of
conveyance, and the court shall confirm the partition so agreed
upon by all the parties, and such partition, together with the
order of the court confirming the same, shall be recorded in the
registry of deeds of the place in which the property is situated.
2. If they are unable to agree: 2nd stageappointment of
commissioners
 Partition by court-appointed commissioners; appointment
- Competent & disinterested persons
- Mandatory if parties cannot agree
- Their authority- limited to the making/effecting the partition
 X- adjudicate on questions of title/ownership of property
- Partition of property under Rule 69 is not meant to prejudice,
defeat or destroy the rights of any person holding a title
paramount to the title of the parties among whom the partition
shall have been made.
 When division would be prejudicial
1. When it is made to appear to the commissioners that the real
state, or a portion thereof, cannot be divided without prejudice
to the interests of the parties, the court may order it assigned to
one of the parties willing to take the same, provided he pays to
the other parties such amount as the commissioners deem
equitable.
2. If one of the interested parties asks that the property be sold
instead of being so assigned, the court shall order the
commissioners to sell the real estate at public sale.
 Report of the commissioners
- The commissioners shall make a full and accurate report to the
court of all their proceedings as to the partition, or the
assignment of real estate to one of the parties, or the sale of
the same. Upon the filing of such report, the clerk of court shall
serve copies thereof on all the interested parties with notice
that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire.
 Action of the court upon the report of the commissioners
a. Accept the report & render judgment in accordance with the
same;
b. Recommit the same to the commissioners for further report of
facts, instead of accepting the report;
c. Set aside the report & appoint new commissioners;
d. Accept the report in part & reject it in part; or
e. Make such order & render such judgment that shall effectuate a
fair & just partition of the estate.
 Proceedings before the commissioners; no binding effect
- Said proceedings before the comm shall not bind parties or pass
title to the property until the court shall have accepted the
report of the commissioners & rendered judgment thereon.
 Judgment of partition; effects of judgment
1. The judgment shall have the effect of vesting in each party to
the action the portion of the real estate assigned to him.
2. If the whole property is assigned to one of the parties upon his
paying to the others the sum or sums ordered by the court, and
the effect of the judgment shall be to vest in the party making
the payment the whole of the real estate free from any interest
on the part of the other parties to the action.
3. If the property is sold and the sale confirmed by the court, and
the effect of the judgment shall be to vest the real estate in the
purchaser or purchasers making the payment or payments, free
from the claims of any of the parties to the action.
 Recording of the judgment
- A certified copy of the judgment shall be recorded in the
registry of deeds of the place in which the real estate is
situated, and the expenses of such recording shall be taxed as
part of the costs of the action.
 Rule when there are expenses to be paid from the estate
- Where there remains an issue as to the expenses chargeable to
the estate, partition is inappropriate. The determination of the
expenses like deceased’s final illness & burial,w/c are
chargeable to the estate, cannot be done in an action for
partition. The heirs have to first submit the estate to settlement
bc in estate settlement proceedings, there is a proper
procedure for the accounting of all expenses for w/c the estate
must answer. However, they make take possession of the
property before settlement of accounts, as long as they first file
a bond conditioned on the payment of the estate’s obligations.
 Partition of personal property
- The provisions of Rule 69 shall apply to partitions of estates
composed of personal property, or of both real and personal
property, in so far as the same may be applicable.
 RULE 70 right thereunder
FORCIBLE ENTRY AND UNLAWFUL DETAINER
 Actions to recover possession of real property  Allegations in forcible entry
1. Accion interdictal 1. 2 indispensable allegations: (A) prior physical possession
2. Accion publiciana (B) the defendant deprived him of
3. Accion reivindicatoria such possession by means of force,
 Distinctions intimidation, threats, strategy or
INTERDICTAL PUBLICIANA REIVINDICATORIA stealth.
Summary action for Plenary action for Seeks the recovery of - Acts of going to the property & excluding the lawful possessor
FE & UD; must be recovery of the right ownership & includes necessarily imply exertion of force over the property
brought w/in 1 yr to possess when the the jus possidendi; w/  Allegations in unlawful detainer
from the date of dispossession has claim of title
1. The issue to be resolved is the right of physical or material
actual entry on the lasted for more than
land (FE) & from the 1 year possession of thesubject real property independent of any claim
date of last demand of ownership by any of the parties involved
(UD) 2. An allegation that the D is unlawfully withholding possession
from the P is deemed sufficient
 Court with jurisdiction over forcible entry & unlawful detainer 3. A complaint sufficiently alleges a COA for UD if it recites the ff:
- Exclusive & original jurisdiction MTC, MCTC, MeTC a. Initially, possession of property by the defendant was by
- shall be governed by the summary procedure irrespective of the contract with or by tolerance of the plaintiff;
amount of damages or unpaid rentals sought to be recovered b. Eventually, such possession became illegal upon notice by
- jurisdiction in ejectment cases is determined by the allegations plaintiff to defendant of the termination upon the latter’s
pleaded in the complaint right of possession;
 Court with jurisdiction in accion publiciana & accion reivindicatoria c. Thereafter, the defendant remained in possession of the
- Determined by the assessed value (FMV x assessement level) of property & deprived the plaintiff of the enjoyment thereof;
the property involved and
 Definitions of the actions; general distinctions d. w/in 1 yr from the last demand on D to vacate the property,
- 2 different COA: forcible entry (detentacion); unlawful detainer the P instituted the complaint for ejectment.
(desahucio)  When the complaint fails to aver facts how entry was effected
- Generic name: accion interdictal (ejectment) 1. The jurisdictional facts must appear on the face of the
FORCIBLE ENTRY UNLAWFUL DETAINER complaint as these proceedings are summary in nature
Occupation is illegal from the Inceptively lawful by virtue of 2. When the complaint fails to aver facts constitutive of FE/UD, as
beginning; acquired a contract (express or implied) where it does not state how entry was effected or how & when
possession by force, but became illegal when he dispossession started, the remedy should either be an accion
intimidation, threat, strategy, continued his possession
publiciana or reivindicatoria.
or stealth despite the termination of his
 Possession as the issue
 1. Decision in an ejectment case does not bind the title to or implied, or the legal representatives or assigns of any such lessor,
ownership of the land or building; it does not also bar an action vendor, vendee, or other person
between the same parties respecting title to the property - natural/juridical person
2. Where the basic issue is not possession but interpretation,  Effect of the pendency of an action involving ownership on the
enforcement, and/or rescission of the contract, it cannot be action for FE & UD
deemed an ejectment suit. - Does NOT bar the filing/consideration of an ejectment suit nor the
 Meaning of prior physical possession in forcible entry cases execution of the judgment
X- literal concept of physical possession  Examples of cases w/c do not bar an action for FE/UD
 - the thing is subject to the action of one’s will or by the 1. Injunction suits in the RTC
proper acts & legal formalities established for acquiring 2. Consignation of rentals
such right 3. Accion publiciana
 - inludes juridical acts; donations, succession, execution & 4. Writ of possession case
registration of public docus, inscription of possessory in 5. Action for quieting of title
formation titles 6. Specific performance w/ damages
 Nature of the entry is to be considered 7. Action for reformation of instrument
- Nature of entry determines the COA in FE or UD; if entry is illegal= 8. Action for reconveyance of property
FE; if entry is legal but thereafter the possession becomes illegal=UD 9. Accion reivindicatoria
 When defendant occupies premises by mere tolerance 10. Annulment of sale/title/document affecting property
- Possession becomes unlawful upon failure to comply with the  When judicial action is NOT necessary
demand; he is bound by an implied promise to vacate upon demand - Contractual stipulations empowering the lessor to repossess the
- Liable to pay rentals from the time of demand leased property extrajudicially from a lessee whose lease contract
- Tolerance must be present right from the start of possession sought has expired is valid.
to be recovered to categorize a COA as one for UD  Demand in unlawful detainer cases
 When the rule on tolerance does not apply 1. Unless otherwise stipulated, such action by the lesser shall be
- In a case where there was forcible entry at the start commenced only after demand to pay or comply with the
 Real and in personam nature of the actions; venue conditions of the lease and to vacate is made upon the lessee
- Where the property is situated (Sec. 2, Rule 70)
- Service in person 2. It is the failure to comply with the demand to vacate that vests
 Who may institute the action for FE/UD upon the lessor a COA
- a person deprived of the possession of any land or building by force, X- mere failure to pay rentals or comply with the terms of the
intimidation, threat, strategy, or stealth, or a lessor, vendor, contract
vendee, or other person against whom the possession of any land or 3. Pay or to vacate- NOT UD; collection of a sum of money/specific
building is unlawfully withheld after the expiration or termination of performance
the right to hold possession, by virtue of any contract, express or Pay/comply AND to vacate- UD
 Form of demand
 a. Serving a written notice upon the person found in the premises
If no person found, by posting such written notice on the
premises
b. Jurisprudence- verbal demand allowed
- Sufficient evidence must be adduced to show that there was indeed
a demand like testimonies from disinterested & unbiased witnesses.
 When right to commence the action arises
- Failure to comply w/ the requisite demand after 15 days if land and
5 days if building
 When demand is not necessary in UD cases
a. Stipulation
b. The ground for the suit is based on the expiration of the lease
XPN: lease is on a month-to-month basis
- As a rule, demand is required only when the action is predicated on
the lessee’s failure to pay rent or comply w/ the conditions of the
lease
 Tacita reconduccion
- No UD
- Implied new lease: (a) the term of the original contract of lease has
expired; (b) the lessor has not given the lessee a notice to vacate;
and (c) the lessee continued enjoying the thing leased for 15 days
w/ the acquiescence of the latter
- Terms revived are those germane only to the lessee’s right of
continued enjoyment of the property leased
X- option to buy the property
 Answer to the complaint; waiver of defenses
1. w/in 10 days from service of summons
2. Affirmative and negative defenses not pleaded therein shall be
deemed waived, except lack of jurisdiction over the subject
matter.
3. Cross-claims and compulsory counterclaims not asserted in the
answer shall be considered barred. The answer to counterclaims
or cross-claims shall be served and filed within ten (10) days
from service of the answer in which they are pleaded.
 Effect of failure to answer
- the court, motu proprio or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint
and limited to what is prayed for therein.
 Defense of tenancy
- Courts shall not be divested of jurisdiction over a case merely by
what is raised in the answer; allegations in the complaint determine
jurisdiction
- Where tenancy is raised as a defense, the court must conduct a
hearing; if found to be true, the court should dismiss the case for
want of jurisdiction
 Resolving the defense of ownership
- Assertion of ownership by the D over the disputed property does
NOT serve to divest the inferior court of its jurisdiction
- If the question of ownership is raised in the pleadings, the court
may pass upon the issue but only to determine the question of
possession esp if the question of ownership is inseparably linked w/
the question of possession. The adjudication of ownership in that
instance is merely provisional, & will not bar or prejudice an action
between the same parties involving the title to the property.
 Judgment conclusive only on possession
 Conciliation requirement
- Cases requiring referral for conciliation, where there is no showing
of compliance with such requirement, shall be dismissed without
prejudice, and may be revived only after that requirement shall
have been complied with.
 Pleadings allowed in FE and UD; verification
- Complaint, compulsory counterclaim, cross-claim pleaded in the
answer; must be all verified
 Prohibited pleadings, petitions, and motions
The following petitions, motions, or pleadings shall not be allowed:
1. Motion to dismiss the complaint except on the ground of lack of
jurisdiction over the subject matter, or failure to comply with
section 12;
2. Motion for a bill of particulars;
 3. Motion for new trial, or for reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any
other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.
 Preliminary injunction; how to obtain possession of the premises
during the pendency of the action in the MTC
- The court may grant preliminary injunction, in accordance with the
provisions of Rule 58 hereof, to prevent the defendant from
committing further acts of dispossession against the plaintiff.
- A possessor deprived of his possession through forcible from the
filing of the complaint, present a motion in the action for forcible
entry or unlawful detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his possession. The court
shall decide the motion within thirty (30) days from the filing
thereof.
 Preliminary injunction when case is on appeal to the RTC
1. Upon motion of the plaintiff, within ten (10) days from the
perfection of the appeal to the Regional Trial Court, the latter
may issue a writ of preliminary mandatory injunction to restore
the plaintiff in possession if the court is satisfied that the
defendant's appeal is frivolous or dilatory or that the appeal of
the plaintiff is prima facie meritorious.
 Judgment
1. If after trial court finds that the allegations of the complaint are
true, it shall render judgment in favor of the plaintiff for the (a)
restitution of the premises, the (b) sum justly due as arrears of
rent or as reasonable compensation for the use and occupation
of the premises, attorney's fees and costs.
2. Judgment shall be rendered for the D to recover his costs if the
court finds that the allegations in the complaint are not true.
3. If a counterclaim is established, the court shall render judgment
for the sum found in arrears from either party and award costs
as justice requires.
 Immediate execution of judgment
- Only if judgment is against the defendant
- Court’s duty to order the execution is ministerial
 Decision of the RTC on appeal is immediately executory
1. The judgment of the Regional Trial Court against the defendant
shall be immediately executory, without prejudice to a further
appeal that may be taken therefrom.
 How to stay immediate execution of the judgment
1. The D must take the ff. steps to stay the execution of the
judgment:
a. Perfect an appeal;
b. File a supersedeas bond to pay for the rents, damages &
costs accruing down to the time of the judgment appealed
from
c. Deposit periodically w/ the RTC, during the pendency of the
appeal, the adjudged amount of rent due under the
contract or if there be no contract, the reasonable value of
the use & occupation of the premises.
- All must concur
- The supersedeas bond covers the monetary judgment of the lower
court. If the judgment does NOT make any pronouncement as to
the pecuniary liability of the defendant, the bond should not be
required. Attorney’s fees are not covered by a supersedeas bond.
 Where to appeal; writ of preliminary mandatory injunction
- RTC; by filing of notice of appeal & payment of docket fee in the
MTC
- Upon motion of the plaintiff, within ten (10) days from the
perfection of the appeal to the Regional Trial Court, the latter may
 issue a writ of preliminary mandatory injunction to restore the
plaintiff in possession if the court is satisfied that the defendant's
appeal is frivolous or dilatory or that the appeal of the plaintiff
is prima facie meritorious.
 Persons bound by the judgment in ejectment cases
GR: binding only upon the parties properly impleaded & given an
opportunity to be heard
XPNs:
1. Trespasser, squatter, or agent of the D fraudulently occupying
the property to frustrate the judgment;
2. Guest or occupant of the premises w/ the permission of the
defendant
3. Transferee pendente lite
4. Sublessee
5. Co-lessee
6. Member of the family, relative, or privy of the D
RULE 71
CONTEMPT
 Definition
- Defiance of the authority, justice, or dignity of the court w/c tends
to bring the authority & administration of the law into disrespect or
to interfere with or prejudice party-litigants or their witnesses
during litigation
- Willful disregard or disobedience of a public authority
X- LA who erroneously issues a partial writ of execution; GAD-
proper
X- sheriff implementing such writ
 - publication pending a suit reflecting upon the court, the
jury, etc tending to influence the decision of the
controversy
 Contempt power is inherent in courts
P: for the preservation of order in judicial proceedings
- Such power should be exercised on the preservative, not on the
vindictive, principle. Being drastic & extraordinary in nature, it
should not be resorted to unless necessary in the interest of justice.
 Purposes and nature of contempt proceedings
Dual function:
a. Vindication of public interest by punishment of contemptuous
conduct;
b. Coercion to compel the contemnor to do what the law requires
him to uphold the power of the Court, & also to secure the
rights of the parties to a suit awarded by the Court
 Direct and indirect contempt
1. Direct contempt- committed when a person is guilty of
misbehavior in the presence of or so near a court as to obstruct
or interrupt the proceedings before the same, including
disrespect toward the court, offensive personalities toward
others, or refusal to be sworn or answer as a witness, or
subscribe an affidavit or deposition when lawfully required to
do so.
2. Indirect- committed out of the presence of the court
 Specific examples punishable as direct contempt; examples
a. misbehavior in the presence of or so near a court as to obstruct or
interrupt the proceedings before the same;
b. disrespect toward the court;
c. offensive personalities toward others;
d. refusal to be sworn or to answer as a witness; or
e. refusal to subscribe an affidavit or deposition when lawfully
required to do so
 - acts of a party/counsel w/c constitute willful & deliberate
forum shopping
 - unfounded accusations, derogatory, offensive & malicious
statements in a pleading submitted to the court (even if
justified by the facts)
 No formal proceeding required; summary proceedings
- No hearing required but there must be adequate facts to support a
summary order for contempt in the presence of the court
  Penalties for direct contempt (d) Any improper conduct tending, directly or indirectly, to impede,
a. If committed against RTC or a court of equivalent or higher obstruct, or degrade the administration of justice;
rank- punished by a fine not exceeding two thousand pesos or
imprisonment not exceeding ten (10) days, or both. (e) Assuming to be an attorney or an officer of a court, and acting as such
b. MTC/lower court- by a fine not exceeding two hundred pesos or without authority;
imprisonment not exceeding one (1) day, or both. (f) Failure to obey a subpoena duly served;
c. When the contempt consists in the refusal or omission to do an
act which is yet in the power of the respondent to perform, he (g) The rescue, or attempted rescue, of a person or property in the custody
may be imprisoned by order of the court concerned until he of an officer by virtue of an order or process of a court held by him.
performs it.
 - failure of counsel to inform the court of his client’s death
 Remedy of a person adjudged in direct contempt
 - act of re-enrty by a party into the land from w/c he was ordered by
- Certiorari/prohibition
the court to vacate; even after the lapse of 5 yrs from the date of
X- appeal
execution of judgment
- The execution of the judgment shall be suspended pending
resolution of such petition, provided such person files a bond fixed
by the court which rendered the judgment and conditioned that he
will abide by and perform the judgment should the petition be
decided against him.
 Nature of indirect contempt
- Criminal in nature; intent must be established
 Specific acts punishable as direct contempt

(a) Misbehavior of an officer of a court in the performance of his official

duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or

judgment of a court, including the act of a person who, after being
dispossessed or ejected from any real property by the judgment or process
of any court of competent jurisdiction, enters or attempts or induces
another to enter into or upon such real property, for the purpose of
executing acts of ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or

proceedings of a court not constituting direct contempt under section 1 of
this Rule;